Witnesses are often considered to be the secret weapon and the best evidence to present in Court. However, the reality is quite different than most of us believe. Witnesses are limited by a number of factors including:
- Availability
- Willingness
- Court Rules
- Credibility
AVAILABILITY OF THE WITNESS
The “availability” of a witness means three things: whether there is a witness (someone actually saw or heard something); whether that person is able to testify in Court and, sometimes, whether a litigant can afford to pay what a witness is charging. This article briefly touches upon a few of the many considerations when determining witnesses—and how a Court’s interpretation of the issue affects those determinations. It is not meant as an instructive treatise by any means, but as an introduction to an issue not regularly encountered by non-attorneys. The information contained, here, does not constitute a legal opinion nor is it legal advice.
Often a Client will believe that they have a witness to an event, only to be told that the witness didn’t actually observe or hear the situation themselves. The “witness” was only told about something or heard about it elsewhere. This means that the testimony would likely constitute “hearsay”—and be prohibited by evidence rules. The rules do provide for certain exceptions to the hearsay exclusion, but most “hearsay evidence” is not an exception and will not be allowed in Court.
If there is an actual witness to an event that is set to testify in Court, whether the person can be present in Court or whether they can testify by telephone from a remote location is also a consideration. Work demands, schedule conflicts and the physical distance between the witness and the Court must be considered.
Even if a witness is available to testify, unexpected work emergencies and weather can be a factor. Inclement weather such as a snowstorm on the morning of the hearing or a work emergency for the witness (especially for expert/professional witnesses) can interfere. Testimony by telephone is often available with advance permission from the Court (your divorce attorney will need to file a motion for telephone testimony) — but there is no guarantee the Court will allow telephone testimony.
A third factor to consider with witnesses, is the cost. Many professions such as doctors or therapists charge an hourly fee. These fees are often hundreds of dollars an hour since they have to miss appointments with their own clientele to be available for testimony. One surgeon who was subpoenaed as a witness in a case charged $1200 per hour and the full amount was due for any portion of the hour and was to be paid up front—with a 2 hour minimum. While most are not this expensive, cost must be considered. Not every case can afford every witness—even when it would be ideal to have that witness testify.
WILLINGNESS OF THE WITNESS
It is not uncommon for a person going through a divorce or custody case to believe they have a witness to the behavior of the other party who will testify on their behalf. However, many litigants discover that the witness they believed would testify in their favor, suddenly appears unwilling to do so.
In family law cases—unlike criminal cases--the “willingness” of a witness is often essential. You will want a witness who voluntarily testifies on your behalf so that their testimony is based on their wanting to help you—not based on a subpoena mandating they appear in Court. A subpoena brings with it a certain amount of trepidation based on the inconvenience and emotional and financial cost of testifying. Having a friend or relative who wishes to testify because they believe in your position and that you are right is ideal. Having a reluctant witness who is afraid to speak openly or is angry at the inconvenience your case has caused, means their testimony’s positive impact for you will limited.
Unfortunately, it is not uncommon to have a witness who tells you initially that they would be willing to testify; however, that witness then reconsiders testifying as they realize they must face the opposing party in Court. For example, neighbors who were present to witness the bad behavior of an opposing party—and tell you they “saw everything”--suddenly realize that the opposing party will still be living next door when the court date is over.
The neighbor fears retaliation or is uncomfortable with the active role they are being asked to play. Family members who supported your position when you told them about an opposing party’s behavior, may not want to speak formally in Court about what they know. They may also fear retaliation or they may know facts that are unfavorable to you that would be brought out under cross examination. Sometimes, they simply do not want to get involved. They are willing to provide emotional support to you, but that is their limit.
Sometimes, more practical considerations enter into willingness to testify. Missing work, using up a vacation day to testify, finding child care and the health of a witness—both physical and emotional health—can also figure into willingness to testify. At times, having a witness testify by telephone can help ease some of the reluctance. Telephone testimony cuts down on time away from work or if there are child care or health concerns that prevent appearing in Court without significant inconvenience to a witness.
Telephone testimony also eliminates the need for the witness to travel. While Court often grant ancillary witnesses the right to testify by telephone, each circumstance is unique. There is no guarantee that a Court will allow telephone testimony. Also, testimony given in person—rather than by telephone—is usually more persuasive to a Court. The Court has the ability to see the witness testify and judge the credibility of the witness based on the Court’s observations—not just what the Court heard.
COURT RULES AND THE IMPACT ON WITNESSES
Courtroom testimony is allowed or prohibited by the Rules of Evidence and the Rules of Civil Procedure. The rules are complex and over-lapping and subject to interpretation before during and after a witness’s testimony. Entire legal volumes and treatises—as well as lifetime careers for some attorney—have been spent on the evaluation and administration of evidence rules and rules of civil procedure.
After determining that a witness is wanted or needed in a case, an attorney must generally disclose the witness to the opposing party. This “Witness List” is in writing and filed with the Court. The Court rules mandate the timing and content of these witness lists. For example, certain witnesses must be disclosed 65 days before a hearing or they could be excluded.
When disclosed, a witness’s contact information and substance of their testimony must also be revealed. While exceptions to the timeline for disclosing witnesses exist, an exception is specific and should not be relied upon as a substitution for following Court rules. Failing to follow the Court rules could cause a witness to be excluded. Expert witnesses, such as doctors or property appraisers or accountants are disclosed pursuant to specific rules that allow the opposing party an opportunity to retain their own rebuttal expert.
This means that the attorney—when considering using an expert-- must consider the amount of time it will take for that expert to investigate a situation if necessary, produce a report (which is required)—and all of this must be done within the time allotted by the Rules. All expert witnesses must also be disclosed with their curriculum vitae attached/filed with the Court, so that their preliminary qualifications to be declared an “expert” by the Court becomes part of the Court record.
One exception to disclosing a witness in advance is the “rebuttal witness”. A rebuttal witness is someone who is called to testify only AFTER the opposing party has testified or presented their case. The rebuttal witness presents testimony only regarding why the prior testimony or evidence from the opposing party is wrong.
That witness is expected to have actual knowledge of a situation, but a different conclusion or recitation that is contradictory to the original witness’s testimony. Rebuttal witnesses are not, however, always allowed due to time constraints that many judges place upon litigants and attorneys for the orderly administration of their courtroom. Therefore, relying upon a “rebuttal witness” exception to save you—when you neglected to timely disclose your witnesses—is a risky practice, at best.
The substance of a witness’s testimony is also guided by Court rules, generally the Rules of Evidence. For example, a witness’s testimony must be relevant and material. Relevance means that the testimony tends to prove or counter the truth of an issue asserted.
Materiality refers to the strength of that connection. While this may seem to be obvious criteria for testimony, it is not uncommon for someone going through a divorce or custody case to believe they have a witness—only to be told by their divorce attorney that the witness’s testimony is likely irrelevant or not material to the issue(s) being litigated. Relevancy need not be dramatic or overwhelming. It can be somewhat nuanced and rather distant—yet still allowed as “relevant”.
However, presenting testimony regarding anything other than strongly relevant facts, subjects someone to an unfavorable ruling because the testimony wasn’t material enough to persuade the Court. Moreover, nuance takes time and explaining distant relationships between facts often causes the Court to lose interest. With the time constraints many judges place upon litigants and attorneys when presenting their case, choosing only the strongest evidence is often the best strategy.
The Rules of Evidence and Civil Procedure are tricky and often surprising to non-attorneys. Witness testimony thought to be rock solid can be excluded or diluted to bare existence when confronted with the rules. The choice of an attorney who frequently litigates and has a daily working knowledge of the application of the rules is essential to a favorable outcome in Court. The best strategy for a Client is the one that is persuasive to the Court—and to persuade the Court, the testimony and evidence must be heard and accepted by the Court.
CREDIBILITY OF THE WITNESS
The credibility of a witness is determined by a number of factors, namely, what the witness knows, how the witness knows the information, the witness’s past history of behavior, the witness’s relationship to the parties in the case and the way they deliver their testimony. Credibility is addressed by the Rules of Evidence and its analysis is applied in hundreds of thousands of courts every day. Credibility is based on facts presented, law interpreted and the observations of the Judge.
A hesitant witness who “forgets” facts or is unable to clarify or explain an issue may appear dishonest to a Court. The witness may be reluctant to testify due to a fear of retaliation or they may simply not have a ready answer to a question. Cross examination of a witness often unravels the finely tuned statements that were elicited on direct examination, causing the witness to contradict themselves or become confused.
A witness who is an advocate for a party—such as a close family member or significant other in a divorce or custody case—may be perceived as too close and too enthusiastic to champion a cause—thereby diluting their message. Courts often hear from grandparents during a custody case where the grandparent recites what a great father or mother their own child has become.
Glowing descriptions of wonderful times spent observing great parenting are easily discarded in the face of unfavorable facts. If a case is subject to such unfavorable facts, the time is better used confronting those facts—rather than wasted on superfluous opinions of perfection. Disparaging the other parent in a custody case may seem like a good strategy—especially for a witness who has been subjected to the bad behavior of the other parent. However, disparagement often back-fires and shows the Court that
A witness who has a criminal history or a history of drug abuse is often discredited in the Family Court. A felony conviction can be used to impeach a witness and even a misdemeanor arrest can be material when it pertains to an issue before the Court.
Behavior of a witness that tends to show instability (frequent job changes/frequent moving), substance abuse—including “legal” marijuana use or a “partying” lifestyle can all be used against a witness if they deny this problem—and the opposing party can show it is true—or if they admit the behavior and it shows a lifestyle not commensurate with the Court’s idea of good parenting.
What a witness knows and how they know it is crucial to the credibility of their testimony. If a witness did not actually observe the act they are describing—they were only told about it—the hearsay evidence rules will exclude the testimony. Hearsay evidence is not credible by law, since it is simply the retelling of what someone told a witness.
A witness, in most circumstances, must have been present to experience the subject of their testimony. For example, if a family member arrives at the door at midnight claiming they were abused by their spouse, the witness could only testify to the demeanor of the family member, the cuts, bruises, the statements made (as long as that person is a party to the case the statements will not be hearsay). However, that witness could not testify to WHO caused the injuries or when or how—since they were not present and didn’t see that part of the incident.
