Exhibit C: Witness preparation.
US District Court, Central District of California
Fishman Case # 91-6426 HLH (Tx) Continued
(no number just title page exhibit C)
26 January 1982
WITNESS PREPARATION:HATTING THE WITNESS
Preparation of an individual witness to give evidence for us at trial
can be broken into three steps:
1. The basic witness hat, which is unvarying from one witness to the
2. Full debriefing and resulting understanding of prospective testimony;
3. Finalization of the testimony with the lawyer.
Steps 1 and 2 would be handled by the GO terminal assisting the
lawyer for that portion of the case, and step 3 would be done by the GO
terminal and the lawyer.
There is basic data about being a witness which should be given to
every witness, to give them reality on what it will be like, answer their
questions, etc. Following are the areas which we would cover (for the
IRS case) as basic witness hatting.
1. It is helpful to describe to the person the physical space of the
courtroom (and, if possible, to have the person visit the actual
courtroom where he will be giving his evidence). Tell (or show) the
witness where he will sit; where the judge, the clerk, and the reporter
each sit; and what roles they play. Tell (or show) him where counsel and
where the audience will be seated. The witness may want to do a little
reach and withdraw on the space of the courtroom, and this can usually be
accomplished during a recess. The witness should be encouraged to take
control of the courtroom.
2. The statistic for a witness is something like 'length of time on the
Stand' (keeping in mind the purpose of each witness to deliver certain
evidence comfortably, persuasively and honestly so the judge can
duplicate and agree with it). A witness will always experience
discomfort. anxiety, etc., and will have (at first) a strong desire to
get it over with. The danger here is that his/her testimony will
become condensed or abbreviated to as to get off the stand as quickly as
possible. The witness should be warned against this phenomenon. We want
a witness to understand that (under ordinary circumstances) they will
have done better to stay on a long time, and they should get their TR0 in
and be there comfortably for as long as it takes. After a time, they
invariably loosen up and actually begin to enjoy the experience such that
they become willing to stay on and on.
A witness who makes only a brief appearance leaves little or no
impression on the judge. A trial judge or a juror must, as part of his
hat, determine what degree of credibility each witness possesses, and
accordingly what relative weight to give to that witness' evidence. A
judge or juror does this by observation of the witness' demeanor as much
as by the testimony given. A witness who is willing to be there, and
answer in as much detail as necessary (not chopping his evidence short
out of desire to "blow" from the stand), gives the judge or juror more
time to observe, and get to know that witness; it is a matter of
increasing ARC between witness and judqe or juror which results in the
judge retaining the data better and also according it more weight as he
will have sussed out that witness for believability.
3. The witness should know that he may be questioned by the judge
directly on some point of interest or at a lull in the examination being
done by counsel. If that occurs, the witness should give his answer
directly to the judge, respectfully and with high ARC and attention to
fully and actually answering the question asked.
Also there are times, though they should be rare and sparsely used,
when the witness may want to address himself to the judge, seeking his
advice or aid. For example, if witness feels he simply cannot answer a
cross-exam question both a yes or no, but must make an accompanying
explanation, he may ask the judge for leave to explain or qualify his
answer. This comm line can be used to good advantage in a situation
where the line of questioning is probing an area of the witness'
religious belief (or where, perhaps, the questions are designed to
address or elicit upper level material): The witness can originate that
this question is improper as it seeks information about his personal
religious belief or data that he considers confidential as part of his
beliefs, and that he has taken a perpetual vow never to disclose.
Address to the judge is not to be over-used or relied on by the
witness to any advantage, but the witness should know that he can have a
comm line to the judge, to appeal for protection.
4. Related to point 2 above, a witness should also be told that his
testimony should be calm and reasonable. Although it is part of his
purpose to persuade the judge, this is done by creating credibility, not
by acting as an advocate. Advocacy is the lawyer's job, and the
representations of a lawyer are not evidence; the statements of a witness
under oath are. Emotional reactions by the witness, argument with a
cross-examining attorney, or attempts to "handle" an antagonistic
cross-exam by tone scale handling are not OK. A PR-trained witness may
get into handing his interrogator, instinctively, and this is to be
warned against. One of the judge's chief tools for according weight or
credibility to a witness and his testimony is the presence or absence of
bias: an argumentative witness, or one who tries to persuade, is seen as
biased, and his testimony is given less weight. The judge's thinking is
along the line that this witness has something at stake (money, status,
his job, having to be right, etc.), and would thus be willing to say
almost anything in defense of his position. Credibility comes about by
being honest, willing to answer/explain, and natural. (The useful
exception to this is "righteous indignation" of a witness questioned
about his personal beliefs, as discussed above).
5. The prospective witness rust be instructed on the actual comm cycle
of giving testimony. If the person is our witness, then direct exam will
be conducted by our lawyer, followed by cross-exam done by the opposition
lawyer. Then comes a redirect exam, done again by our lawyer (followed
possibly by a short recross-exam).
During direct exam our witness will be asked the questions which have
more or less been prepared in advance by ourselves (the witness, the GO
terminal responsible, and the lawyer). None of these questions should
come as a surprise, though they may be taken up in relatively random
order. In response to these questions, we are usually looking for
relatively detailed answers, with specific points to be made. These
answers may be fairly lengthy, depending on what the court will allow.
Some judges may allow 'narrative' type answers, where others may demand
that the questioning attorney stick to a strict question-and-answer
6. During cross-examination (conducted by the opposition lawyer, for the
purpose of unmocking the credibility and consistency of the witness), the
witness should NEVER VOLUNTEER ANTHING. The exact question asked should
be answered, no more, no less. Q: "When did you read that policy
letter? A: "On the 16th May as best I can recall." NOT A: "I recall
it was the 16th May as I had just returned that morning from a mission."
(The latter would give the lawyer a string to pull--what mission?
Where? Why? Etc.)
Part of answering only the exact question asked is bearing and
responding to only the words used; the tone level of the question is to
be ignored. Most cross-exam is conducted at the tone of covert
hostility, and this is to be taken into consideration. A clever
cross-examiner can make any statement sound suspicious and any question
sound accusatory; but our witness, expecting this and listening only to
the words and not the tone, will not take the bait.
A cross-examination proceeds by the opposing attorney asking
questions designed to (1) expose known or recognized out-points in the
direct testimony of our witness, and (2) lead our witness to volunteer
other data which will become a 'string' to be pulled. A good
cross-examiner will pull each and every string in the hope that he will
find the Sherman tank which destroys that witness' credibility. A good
witness who can answer the questions exactly without volunteering data
or being drawn into argument or acting evasive, will emerge unscathed.
The cross-examining attorney may simply give up after a few failed lines
of questioning. But the witness must be willing to sit it out
comfortably: we have seen witnesses who gave one day of direct testimony
and then had to sit through four or five days of cross-exam (and they
came out of it quite keyed out and ready to go on for as long as it
took:) but this is the exception and not the rule.
7. By sticking to short, directly responsive answers (basically: yes,
no, I don't know, I don't remember), the witness will invariably find
that some of these answers felt incomplete, or sounded unfavorable: they
would like to have explained the answer a bit, remedying the sense of
"omitted" data with "all related facts known." But cross-exam is not the
time to correct our own outpoints: this is handled on redirect exam. Our
lawyer will have listened carefully to all the cross-exam testimony, and
noted down the points which sounded incomplete or unfavorable. These
will each be cleaned up or rehabbed on redirect, so that any negative
effect is minimized. Also there is often a short recess between
cross-exam and redirect exam, so the witness can tell the lawyer any
points which he feels should be cleaned up. Knowing this in advance, the
witness can be willing to have his needle "dirtied" on cross-exam and
"cleaned" on re-direct.
8. When a question is asked of the witness, he should see if there is an
objection forthcoming from the opposite attorney. This is especially
true during cross-examination where our attorney will be trying to
protect our witness from improper lines of questioning. This does not
mean that the witness pauses and looks at our attorney. An obvious comm
lag can look like the witness has to "think up an answer" and this hurts
If there is an objection made, it occurs by the attorney standing up
and stating: "Objection--that question is improper because of blah blah
blah." There may be argument back and forth on this by the attorneys for
both sides, then the judge will rule. The objection will either be
sustained by the court (i.e., the judge agrees that the question is
improper, and the witness is to ignore the question) or overruled (i.e.,
the objection does not stand, and the witness must now answer.)
If the witness is not paying attention, and simply hurriedly answers
the question, he has cut off our lawyer from making any meaningful
objection. If the witness answers the question while an objection is
being interposed, the court reporter may ignore the objection and record
the answer given by the witness or the judge may say, Well, the answer's
in. Neither of these situations is optimum, so the witness should see
if there are objections. If the witness sees the attorney start to rise,
he should shut up; otherwise, he should continue measured comm.
9. A small point, perhaps, but the witness should be told that he cannot
expect to be acknowledged while giving testimony. The comm cycle is
question-answer, next question-next answer, etc. There is no ack in this
comm cycle, and in fact this is sometimes used as a tool by the
cross-examiner. He may ask a question, then turn and walk away from the
witness, seemingly ignoring him even after completion of his answer. An
uninformed witness might feel uncomfortable, unacknowledged, and feel
compelled to answer further, to fill the silence, to last. That is what
the cross-examiner wants, for the witness to run on and on, volunteering
data, giving up strings to pull, and looking uneasy to the judge. So
watch out for this phenomenon too.
20. The witness is sworn to tell the truth, and he must, of course, do
so. The scope of his testimony and the patter for certain areas will be
worked out with counsel, so that there can be minimum risk to our case
and to the witness in sensitive areas. If a witness is privy to "too
much" sensitive or possibly unfavorable data, he may well have been
eliminated from our witness list early on.
Perjury, i.e., lying under oath, is a crime (and, as we know, is usually
self destructive for the individual); we want our witnesses to tell the
Impeachment is a term which just means that this witness is, in the
judge's eyes, unworthy of belief (due to his demeanor, numerous or major
inconsistencies in the testimony, or bias). Both these terms (perjury
and impeachment) should be gone over with our witnesses so it is no
mystery or MU if they come up in court. We had one witness who, hearing
the opposition announce that they would try to impeach her, clammed up on
the stand, thinking she would be taken off to jail. (During a recess we
cleaned up the MU and she then did fine.)
11. Our witness should be informed that it is OK that they have talked
with the lawyer (and his assistants--the GO staff) prior to testifying.
No lawyer would ever put on a witness he had not worked with, and for a
witness to deny this destroys his credibility immediately. It is a
common tactic for the cross-examining lawyer to ask the witness if he had
discussed his testimony with the Church's lawyer; if our witness doesn't
know about this, he will either manifest a "missed withhold of nothing"
(and be enturbulated in his testimony), or worse yet, lie about it (thus
losing all credibility before the judge).
12. The witness should not look at the lawyer for our side or the GO
terminal or the audience when being cross-examined. He should look at
the cross-examiner, unless our attorney takes an objection. If the
witness looks continuously at our lawyer, the judge or juror will think
that the witness is seeking guidance from the lawyer and this affects
credibility. This is not OK. Rather, the witness should be natural,
looking at the person originating the comm.
If the above points 1-12 are gone over with each of your witnesses at
the outset, they will be much more comfortable, cooperative and
successful. They need to know what to expect if they are to help.
Answer all their questions, as best you can; some questions the lawyer
may have to answer (e.g., if the particular witness needs independent
advice about claiming a 5th Amendment,, attorney/client, priest/penitent
or other privilege). These points have been taken from notes of witness
hatting sessions done with the trial lawyers for the IRS case; they
should be useful in the circumstances of most US trial work.