In the latest episode of his "Powerful Witness Preparation" podcast series, Tell the Truth, litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. He reminds us that a witness takes an oath to tell the truth, the whole truth and nothing but the truth and they must understand all three parts of this oath. In this episode Mr. Small focuses on the first part of the oath.
The Truth - This is not only a rule of law it is also a rule of self-preservation. Lying while under oath is not only a crime, it is foolish. A witness must assume that the questioner knows more and is much more experienced in catching a lie than your average person. The consequences for telling a lie are often far more worse than whatever the questioner was asking. He explains that there are two mindsets that are detrimental toward a witness telling the truth.
1) "Oh What The Heck" - If a questioner doesn't believe your version, there is a natural instinct to say "oh what the heck," and give them a little more of what they seem to want to hear. Maybe it's only a little incorrect. However, there is no such thing as "maybe" when every word a witness says is being picked apart and used to make an argument in a case. If you give them what they want, they will not go away. They will only want more.
2) Mistakes - It is widely recognized that nobody is perfect, yet in a witness environment people tend to forget. Witnesses almost feel like someone is grading them, so when they make a mistake they panic and try to ignore the mistake or try to mold it and shape it into something else. Every witness makes a mistake at some point. When a witness does make a mistake, they must keep two things in mind:
A) When you are in a hole, stop digging - As soon as you realize you have made a mistake just stop and fix it by clarifying.
B) Don't worry about it - You are not expected by the jury to be perfect. They may be nervous as well and know that they may make mistakes if they were a witness. Your mistake draws you closer to the jury, not further away.
He finishes by reminding us that telling the truth means being yourself. It doesn't mean witnesses shouldn't work hard in preparation to be careful and precise in expressing themselves. It just means they shouldn't be precise phonies.
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