Get Off the Witness Stand
Very few things in the life of a trial are more tedious than watching a witness drone on and on from the witness stand, without props, without teaching aids, without moving from a stationary position. No matter how well informed about a subject, no matter how expert or credible that witness may have seemed in your office during trial preparation, the immobile witness will not play as well in front of a jury as the witness who gets up to instruct, uses demonstrative exhibits judiciously, and, when the occasion calls for it, acts out some conduct for the benefit of the jury. There are, of course, risks, but when properly prepared, a witness is most effective when the jury is actually attentive to his or her testimony. Not only will physically moving tend to maintain interest but it can also serve to enhance credibility.
Generally, the presentation of testimony is a matter in the court’s discretion. See United States v. Howard, 2002 WL 31545922 (4th Cir. 2002) (applying abuse of discretion standard in affirming district court’s decision to allow in-court experiment); United States v. Birch, 39 F.3d 1089, 1092 (10th Cir. 1994) (noting that review of “trial court’s decision to admit or exclude [demonstrative] evidence will be reversed only if the court abused its discretion.”) (internal quotation and citations omitted).
Assuming you can get the trial judge to permit your witness to leave the witness stand during testimony, such a tactic can sometimes mean the difference between a witness embraced by the jury or one whose testimony is rejected. For example, in a medical malpractice case, a physician was accused of failing to respond properly to a medical emergency in his own office when a patient went into anaphylactic shock and stopped breathing. The defendant/physician, not by nature adept at testifying, was asked to come down from the witness stand and get down on his hands and knees to demonstrate what emergency measures he took and how he went about instituting these measures. The demonstration was well rehearsed and planned, but it did not come across that way; instead, the testimony was effective storytelling, capturing a story of heroism (albeit failed heroism, as the patient was permanently brain damaged) that allowed the physician to demonstrate how much he knew about life-saving techniques and how hard he tried to save the life of his patient. The jury returned a defense verdict. See also, McEwen v. City, 926 F.2d 1539 (10th Cir. 1991) (in civil rights action based on claim of excessive force used during arrest, trial court permitted officer/defendant to show the manner in which he handcuffed suspect by handcuffing his counsel over objection of plaintiff; trial court found that the handcuffing demonstration was permissible as it was not merely a dramatization without any educational or informative value).
Experts often are asked to explain very complex scientific principles. To do so from the witness stand might be fine for graduate students in whatever arcane discipline the expert makes as his or her own. However, it is unreasonable to expect that most lawyers, judges, and surely jurors will attentively sit through a dry lecture without more than just words for guidance. Rather, the expert should take every opportunity to get off the stand, stand in front of the jury box if permitted to do so by the judge, and interact in a slightly more informal way. If the witness is comfortable in this setting, the closer contact with the jurors and the ability to keep the jurors’ eyes on him or her will make for a nice break from the drier sections of the testimony. For example, if a blow-up of a chart or table is being used, let the witness come down from the stand to point out specific data points of interest. If a document is used, let the witness come to the blow-up of the document with a highlighter or other marker to pinpoint the segment of the document worth the jurors’ attention. See Orthopedic Equip. Co. v. Eutsler, 276 F.2d 455, 463 (4th Cir. 1960) (allowing plaintiff ’s expert to present in-court demonstration of testimony depicting insertion of a nail into a manufactured gauge because demonstration “was not unfair or confusing and did not profess to simulate conditions at the situs of the operation”).
In certain cases, such as complex pharmaceutical products cases, the science, often so important to the defense, can seem impenetrable. That does not mean the witness should be. Even if the subject matter of an expert witness’ testimony remains on a plane fit only for a Nobel laureate, the shrewd communicator can transmit sincerity and credibility. By showing the jurors an approachable rather than imperious side, by descending from the ivory tower/witness chair, accessibility, friendliness, and even comprehensibility can be achieved.
Having an adverse witness come off the stand can sometimes work well on cross-examination. But be careful. The worst example of a backfiring trial tactic in this vein was probably the O.J. Simpson trial when the prosecutor, not knowing the answer to the question “Will the glove fit?” had O.J. try to pull on the glove in front of the jury to disastrous consequences.
Sometimes, however, risk taking has its rewards. In another, less publicized criminal trial, a defense witness, who purported to be an eyewitness to the crime and gave testimony that the defendant was not the real perpetrator of the crime, was cross-examined about her eyesight. Good detective work revealed that the witness was very nearsighted, and yet the witness insisted from the witness stand that while she did not have her glasses on the night in question, she did not need those glasses. In fact, probably out of vanity, she did not use them on the witness stand either, and her eyesight was put to the test: When asked to read the red lettered sign over the door in the back of the courtroom from the witness stand, she had no trouble telling the jury, under oath, that she could easily see that the sign said “Exit.” Given the color of the sign and its location, that would not seem so hard even if someone were merely guessing. However, that was not the end of the eyesight exam. The witness was next asked to descend from the witness chair and move to the back of the courtroom, right under the “Exit” sign, and to face the judge and jury and read the sign behind the judge’s chair – “In God We Trust.” She was unable to do so, and her “eyewitness” testimony crumbled as the witness trudged back to the witness stand to the unmistakable murmur in the courtroom: “She couldn’t see. She couldn’t see.”
Even your own witness, carefully prepared and presumably ready to leap from the witness chair, can find the well of the courtroom filled with pitfalls and traps. See, e.g., Ballard v. River Fleets, Inc., 149 F.3d 829 (8th Cir. 1998) (affirming jury’s finding of contributory negligence where jury may have relied on plaintiff ’s in-court demonstration that revealed he improperly pulled a cable and subsequently suffered injury to his back); United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) (witness stepped off the witness stand and erroneously identified two members of jury as suspects during in-court identification procedure).
The point of these examples is simple: Asking a witness to descend from the witness chair to the well of the courtroom can mean great success or doom your case to failure. It is helpful in keeping the jury engaged, and in conveying more about your witness than the mere words of his or her testimony. It can create problems, often serious ones, but if you have thought through the risks and rewards of taking this step and minimized the possibility of mistakes through witness preparation, it is often the best way to present your witness.
Mr. Kraus is a partner resident in the New York office of Sedgwick, Detert, Moran & Arnold LLP. This article was prepared with the assistance of Soo Kim, an associate in Sedgwick’s New York office.