Witnesses are usually assessed according to their credibility and reliability.
In cases where there are disputes of fact, the performance of the relevant witnesses will be critical, as the case is likely to be determined according to which witnesses are believed and which are not.
This article discusses dome of the do’s and don’ts involved in giving evidence at a hearing.
It is important to define the following terms:
Credibility – this term refers to whether a witness is honest and doing their very best to tell the truth, or whether they are attempting to mislead or deceive the court.
Reliability – this refers to whether the recollection or perception of a witness is accurate.
The distinction between these two concepts was outlined by Nettle and Gordon JJ in the High Court case of IMM (2016) 257 CLR 300:
“Before proceeding further, it is important to be clear about what is meant by ‘credibility’ and ‘reliability’ in this context. At common law, a distinction was ordinarily drawn between the two concepts. The credibility of a witness was commonly understood as meaning the ‘truthfulness’ of the witness — whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness’ ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time.”
How to be an impressive witness
In our opinion, a witness should observe the following in order to be seen as a credible and reliable witness:
- 1. Listen to the questions you are asked. This one may seem obvious, but is often not followed by witnesses. Some witnesses will blurt out the first thing that comes into their head before they have even heard the whole question. Listening to the whole question before you answer will reduce the likelihood of you making the common mistake the subject of the following paragraph.
- 2. Answer the questions you are asked. This one may also seem obvious, but is surprisingly often not heeded by witnesses. I once had a client who when I would ask a simple yes or no question to, he would go on a 5 minute monologue, at the end of which I would find that my question had not been answered. Needless to say, I was not surprised to hear a barrister say that he was the worst witness he has ever seen. Failing to answer the question can make you seem shifty and evasive, and this will reflect poorly on your credibility. Finally, failing to provide a response which answers the question tends to annoy the judge hearing the case, who may make his or her displeasure known, in which case you will know that things are not going well at all.
- 3. Ensure that your evidence is accurate. Again, it is surprisingly common for a witness to exaggerate or say things which are not true, even if they may not have intended to mislead. For instance, I once asked a client during a telephone conversation if she had done a particular thing she had been asked to, and she said that she had done ‘everything’. I then asked to confirm whether she had done the thing I had asked her – and she answered no. This client would have been a lousy court witness. Inaccurate or exaggerated answers give the impression that you are not a person who is sufficiently focused or who takes inadequate care with facts, and this affects your reliability as well as your credibility.
- 4. Keep it short and sweet, especially when you are being cross-examined. A lot of witnesses ramble on, not realising that the more they say the more likely they are to slip up. If you only say one thing in response to a question, you are 100 times less likely to make a mistake than if you say 100 things. This is why a prudent witness will keep their answers concise and to the point when they are cross-examined.
- 5. Frankly admit things that look bad on you. When a Judge or Magistrate is assessing your credibility, he or she will often pay special attention to those occasions when you are asked to admit something that reflects poorly on you or which may harm your case. A witness who admits such matters at the first opportunity without resistance if they are true is more likely to be believed on other matters compared to a witness who attempts to avoid or even denies such matters when they are later established. Nothing is more harmful to a witness’ credibility than when they deny something which the cross-examiner later establishes as true.
- 6. Don’t argue with the cross-examiner. Your job as a witness is to give evidence by answering the questions posed to you, not to argue against anyone. An argumentative witness is not a witness who gives the impression that they are always telling the gospel truth. Rather, they are obviously self-interested and probably place that above their duty to tell the truth.
- 7. Don’t be overly emotional. There are cases when showing emotion will make you more plausible and may also elicit judicial sympathy. For instance, if you are the victim of a serious crime, shedding some tears in the witness box probably won’t hurt you. On the other hand, witnesses who show anger or becoming irritable rarely come across well. Furthermore, they are more likely to make a mistake or becomes non-sensical if they are overcome by emotion. Remember that you duty is to tell the truth in relation to every question, not to get things off your chest or bear your soul. A sound witness is usually calm, and gives considered answers to the questions.
- 8. Avoid giving hearsay or opinions. Hearsay involves proving something to be true by means of a statement said outside of court. Generally speaking, hearsay and opinion evidence are both inadmissible (there are exceptions). A witness who keeps introducing inadmissible hearsay evidence is going to irritate the court, and may also give the impression of being shifty and evasive. Opinion evidence from a lay witness will not only be disallowed, but will also affect the impartiality of the witness. Witnesses who are unable to distinguish between facts and opinions are inevitably seen as unreliable because everything they see is obviously tinted by their own preconceived views.
Many a judge, solicitor and barrister has observed witnesses who lack self-awareness in relation to the way they are perceived by others. If they are not shell shocked during cross examination, they are when judgment is handed down and they discover what an unimpressive witness they were in the eyes of the judge or Magistrate.
In some ways, being a persuasive witness in court is similar to being a persuasive witness outside court. A calm witness who listens carefully and responds directly and conscientiously to the questions they are asked is inherently more believable than an angry, argumentative and occasionally evasive witness who is not careful to ensure their evidence is accurate.
In court, the assessment of a witnesses’ credibility and reliability is tested in cross examination where the qualities of the witness described herein come into focus. It is therefore very important that the witness is able to withstand the rigours of cross examination by observing the above common sense rules.
Remember that your role is merely to say what you saw and answer every question as accurately as you can.