Witness Training Course from IOSH
I recently attended a one day IOSH (Institute of Occupational Safety and Health) course on how to be a witness in a Criminal or Civil course. The course was fully booked with roughly 140 health and safety professionals in attendance. It cost about £80 for the day and included a lovely lunch, teas and coffees.
Format of the Day
A booklet was part of the course setting out aims and objectives and things like how to address the judge or chair of a Tribunal. The second part of the course was an interactive session where a number of cases were discussed with volunteer witness’s being questioned by Barristers ( the course leader). It was so interesting how people come across as being defensive or even aggressive towards the Barrister.
The Whole Truth and Nothing But the Truth
The main thing that came out of the course was the importance of telling the truth, the whole truth and nothing but the truth and although this is pretty much a well known fact, many people forget this basic concept in the heat of cross examination by a Barrister. Demonstration and examples were given throughout the day which had the audience groaning or laughing as, one by one our colleagues bit the dust in the face of supreme mastery of ridicule and challenge by our tutor.
Here is a typical example and attempt of a health and safety professional to ‘win’ the exchange:
Barrister: ‘So Mr Smith – I see you quote the law quite a lot in your health and safety reports?’
Smith: ‘Yes, that is what I do for my job.’
Barrister: ‘Would you say you are a law abiding citizen?’ said in a conversational tone
Smith: ‘Yes indeed!’
Barrister: ‘And that you always obey the law?’
Barrister: ‘That’s commendable. (pause) ‘Have you ever broken the speed limit?’
(Uh-oh I think)
After the briefest of pauses Mr Smith replies: ‘No’
Barrister: (incredulously) Not even by one mile an hour by accident?
Smith after a longer pause: ‘No!’
We all laugh and I am glad it’s not me that had been put on that particular spot. If you want to know how to answer that question go to the end of this post.
The thing is (the Barrister explains) is he has had lots of practice and his job is to try and trip you up; make you look shifty in front of everyone. Because if you lie about this silly thing then chances are you lie all the time and your credibility as a witness goes. But whatever happens between the Barrister and you as a witness do not take it personally. It is his job to try the best for his own client and get you flustered, angry or even to say the daftest things. All of this makes your evidence seem unreliable. Criminal courts system is term adversarial, this means that the object of the lesson is to have a fight – with the judge and jury giving the final verdict. Barristers are paid to give help to either side. They’re not allowed to choose the cases that they take on and must take each case as they are offered, I think he called it the cab rank approach to cases. However, what was surprising, was the fact that if the defendant admits they have done the crime then the Barrister would be unable to defend that person.
Health and Safety Witness Training Tips
Generally Barristers who are cross examining a witness would be unable to challenge technical knowledge such as health and safety experience and law. So what they will focus on instead is inconsequential detail and try to get you rattled or lose your temper (see example above) and manipulate the situation so that your personal pride takes over and trips you up. The Barrister’s questions may have no real relevance to the case and way off the mark. What you have to do as a witness is to keep to the point and get over the facts of the case that you wish to make and take control of the proceedings. The Barrister pointed out that you are there to inform the court via your evidence. You should not let personal feelings come into the exchange. Do not take on the Barrister in matters of argument as he is likely to win. He may not challenge your technical knowledge but he will destroy your credibility as a witness if you let him.
Tactics to help the Witness
Although questions are asked by the Barrister, position yourself facing the Judge and Jury and reply to them. This is because the Barrister will be making disbelieving faces, turning away from you. His mannerisms and body language will be provocative to get an inappropriate response, an exaggeration or you become flustered. All of this will make you unconvincing as a health and safety witness. Always stick to the case in point and say what is needed to inform the court even if the Barrister is ignoring you. Turn and look at the Jury and state why you did what you did, conclusions you reached and any thing else which is needed. You need to control your nerves and focus on what is required. You are not there to win the case for your side but to tell the truth.
Other Points regarding Witness Training
- A witness mustn’t discuss a case with anyone about the evidence if it goes on overnight or they could be found in contempt of court
- Swearing on the Bible or affirming before giving evidence has always been an ethical issue with me as I’m not quite sure what to do. I felt happier when the Barrister talked about Priests who didn’t swear on the Bible believing the Bible was not to be used in that way.
- All written information in a case can be called as evidence for the court. Be careful what you write in emails as an unprofessional observation or gossip can give the wrong impression when viewed some months later.
- Usually when giving evidence for your own side, the experience is relatively stress free. You are taken through your evidence by your Barrister and have a chance to expand on different pieces of the statement about facts of the incident or other information that you’re giving. The cross-examination, however, is a different kettle of fish and the Barristers job will be to try and discredit you and your evidence. The Barrister will aim to take you outside your area of expertise and to pick up tiny bits of peripheral issues to divert the jury. It is important to focus on what the court needs to know rather than what is being asked and always stick to your facts and get three main points across which you will have decided on are the most important issues in the case.
- Its important to prepare your own statement and be clear on what points you want to make.
- Always be humble, polite and submissive but keep focused on why you are a witness (to inform the court so that justice can be done)
- Always come back to the main points of why you’re there and stick to the issues at hand rather than being diverted
- Always go into details of why you may have acted in a certain way. Don’t assume that the court or the Jury understand why you do the things you do.
When the Barrister made this point I was taken back to a time when I answered a question like that. I had been comforting a worker who had had an argument with her Boss. I listened patiently and sympathetically. Unfortunately the worker had taken my patience and sympathy as a sign that I agreed with her that the Boss had been a bully. When it was suggested to me that I should have been more challenging – I should have pointed out that my role was one of a nurse and not to upset a ‘patient’. However, I thought everyone understood this about nurses as I lived with this all my professional life. But, as the Barrister pointed out, people do not understand why and who your are and your professional boundaries.
You need to explain your behaviours in detail to the Jury or whoever is asking the question and do not assume that people understand why you acted in a particular way.
- Never be afraid of admitting that you’ve made a mistake in your response or submission. Stop and explain this to the judge
- Pause before you answer and think about your response. This sounds more professional and may stop you reacting emotionally to the Barrister
- An interesting issue that connected with me was that you need to pay attention to detail prior to giving evidence, taking time to answer, being really precise but also trying to answer the question and not being badgered by the Barrister.
- Going to watch some court cases prior to the real thing was a suggestion. Use the public gallery for observation of cases and to get acquainted with the layout of the court and procedure
- Tie long hair back and wear a high necked top for women as fiddling with your hair or becoming red around the neck can suggest your nervous and may be guilty or lying.
8 Great Points to Take Away from the Witness Training Programme
Altogether a really interesting day and I took away these points for the next time I am in court although I am hoping never to have to use this particular piece of training!
- You are not there to win the case for your own side but inform the court
- Don’t lose your temper
- The Judge understands how a witness feels, ask for help if you get stuck or don’t know what to do
- Explain what you mean even if the Barrister says you have been discharged or badgers you to give a yes or no answer only
- You can make mistakes, if you do acknowledge it and move on. It will add to your credibility as a witness
- Careful what you write in emails
- It’s a fight, barristers clients are always right
- After the case has finished don’t dwell on poor or good performance. Just do your best
If your wondering how to answer the law abiding citizen question that Mr Smith bungled above. Here is the best answer that you can make (courtesy of the Barrister).
The Right Answer to the ‘Law Abiding Citizen Question’
After you have said you don’t break the law and then realise you have broken the speed limit (as most people have); apologise to the court for bragging about not breaking the law and acknowledge that you have broken the speed limit at times. This, the Barrister explains, is perfectly acceptable and most of the jury would find this a reasonable admission and one they would identify with themselves. Thoroughly enjoyable and well worth the time. I’d recommend this course. I loved the sardonic and self deprecation of our Barrister de jour. He was just like I would expect him to be. Funny, deep, thought provoking and useful course. The Witness Training course was run by Bond Solon on behalf of IOSH.