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Subpoena

Subpoena

What do you do when you are served with a subpoena?

You are the star witness!!!. How to make sure you do not put your foot in your mouth.

What is a subpoena?
A subpoena is a court document ordering you to attend Court at a specified date and time to give evidence as a witness. Sometimes, a subpoena requires you to attend Court to produce documents in your possession.

What to do when you receive a subpoena
It is compulsory for you to attend Court at the appointed time and place and you are to be present until the case is completed. If you fail to turn up, you can be charged for contempt of court and may be fined or imprisoned.

Upon receipt of the subpoena, it is prudent to contact the firm of solicitors that caused the subpoena to be issued on you. The lawyer who issued and served the subpoena on you will certainly want to take a sworn statement from you. You may discuss the case with him and the type of questions he proposes to ask you in Court.

If you cannot speak English, be sure to inform the lawyer so that he can make provision for an interpreter to be present in Court.

Giving Evidence in Court
Your duty is to tell the truth, the whole truth and nothing but the truth to questions put to you by the lawyers, Prosecutors or the Judge.

What to wear
You are expected to dress neatly and decently.

In Court
In all cases, witnesses have to wait outside the Court until he or she is called to give evidence. Upon being called, he proceeds to the witness box. There, a Court official will ask whether he intends to give evidence on oath. For example: If you are a Christian, you may swear on the Bible “to tell the truth, the whole truth and nothing but the truth, so help me God.”

In the Local Court, you address the Magistrate as “Your Worship.”

In the District and Supreme Courts, you address the Judges as “Your Honour.”

The Court proceedings can be slow and time consuming. What you say in evidence is usually recorded down by the parties and the Judge. So be sure that you speak slowly, clearly and always look at the hand of the Judge to see if he is catching up with your evidence.

There are three stages in the giving of evidence from the witness box:

  • Examination in Chief:
    Firstly, the party that called you to come to court will put you on the stand and ask you to give evidence. This part of the evidence is called “examination-in-chief”. You will give the evidence after stating your name, occupation and address. You sometimes hear lawyers objecting to evidence by claiming it is “leading evidence”.

This is an example of what is termed “leading evidence”.

The lawyer who is examining you at the examination in chief stage wants you to tell the court what emotions were experienced by you when you were involved in the car crash.

He can only ask you the following question: “And when the car crashed, what did you feel.??”.

He is not allowed to say” And when the car crashed, did you feel pain in your neck.???”. By phrasing the question in that manner, he is leading you to say what he wants to hear.

Judges do not allow that type of question as it is unfair to the opposing side.

  • Cross Examination.
    After the Examination in chief, the opposing lawyer gets to test the veracity of your evidence. The opposing party will then proceed to ask you questions called “cross-examination”. The purpose of cross-examination is for the opposing side to put his client’s version of the facts to you. Those facts may be completely different from what you had testified. Don’t be alarmed or upset. If you disagree with the version put across, you should just politely say so.The purpose of cross examination is for the opposing lawyer to try and prove that you have been untruthful or that you may have been mistaken in the delivery of your evidence.

A skilful cross examiner makes the difference between a good lawyer and a mediocre one. During cross examination, the rule of “leading evidence does not apply”.

In fact it is a usual method of cross examination to use leading evidence to try and confuse the witness or to test the truthfulness of the witness.

Take for example, the car incident mentioned above. At cross examination, I may ask the witness the following question:

“After the crash, you did not really feel any pain in your neck did you? A witness who has earlier claimed to have been hurt and who is not alert at the cross examination may just agree thereby throwing in doubt the evidence.

Re-Examination

After a witness’s evidence has been torn into shreds by a skilful cross examiner, the witness gets a chance to correct his story. The lawyer that called you may want to ask you further questions to clear up matters arising from the cross-examination. This process is called “re-examination”. The purpose of re-examination is basically to allow the witness a chance to re-affirm his story or clarify any errors made when he was questioned at cross examination.

Using the same example above. If the witness while being cross examined had said that he did not have any pain in his neck after the crash, he will be asked the following question by the lawyer who first examined him at the examination in chief stage.

” You said at cross examination that you did not feel any pain after the car crash, do you want to clarify what you meant?” At that stage, hopefully, the witness can say that he was mistaken and that he did feel some pain after the crash so as to clarify his evidence.

During all these giving of evidence, the Judge sits like an umpire and decides whether the questions are fair, leading or whether the questions should be answered or not. He may also ask you questions to clarify matters which may be important to him and which may help him to understand your evidence.

When you are in the witness box giving evidence

  1. Keep cool and calm. Speak clearly and slowly.
  2. Always give a short and precise answer. Do not exaggerate. Sometimes if you need to explain your answer in greater detail, ask the Judge for permission to do so.
  3. If you do not know or cannot remember, say so. Do not guess.
  4. Never let the opposing lawyer fluster you. It is his job to get you to say something to advance his client’s case.
  5. Just tell the truth, the whole truth and nothing but the truth. If you lie in Court, you can be charged with perjury and be fined or imprisoned.
  6. If you do not hear the question, always ask the questioner to repeat the question. If you do not understand the question, ask for it to be explained.
  7. Do not be sarcastic or make jokes.

After giving evidence
After you have been re-examined, with the Court’s permission, you may leave the witness box. Once outside, you are not allowed to talk to other witnesses.

TO CUT A LONG STORY SHORT:
I was involved in a 3 day trial last month. My case was proceeding very well as during cross examination of one of the defendants, I had scored several major points which went against the witness’s credibility. I would say that 40% of the witness’s version of events had been torn to shreds by the cross examination she had undergone.

Although the case was going well for my client, my client suggested that the matter settle out of court by the defendant paying my client “X” amount of money. That offer was declined by the defendants.

The second defendant then had his turn in giving his evidence. As the 1st defendant had already given his evidence, he was allowed to sit in court to hear the evidence of the 2nd defendant.

I tore into the 2nd defendant and was again scoring very important points in respect to his credibility and his version of events.

Half way through my cross examination, the judge stopped the trial. Apparently, the 1st witness who was sitting behind me in court had been trying to pass hints to the 2nd defendant in an attempt to assist their case. The judge asked the 1st defendant to stop making faces and passing hints to the 2nd defendant.

Suffice to say that at that stage, both defendants knew that their case was virtually lost as they had totally lost any credibility with the judge by their actions.

The matter was settled for “X + Y” amount of money as our case had improved significantly as a result of the cross examination.

Moral of the story:
It is always easy to be a truthful witness. Telling lies and covering them up is harder than telling the truth as we all know that one lie leads to another.

On the lighter side

Was He Dead?
An attorney, cross-examining the local coroner, queried, “Before you signed the death certificate had you taken the man’s pulse?

“No,” the coroner replied. “Well, then, did you listen for a heart beat?”

The coroner answered, “No.” “Did you check for respiration? Breathing?”, asked the attorney. Again the coroner replied, “No.”

“Ah,” the attorney said, “So when you signed the death certificate you had not taken any steps to make sure the man was dead, had you?”

The coroner rolled his eyes, and shot back “Counselor, at the time I signed the death certificate the man’s brain was sitting in a jar on my desk. But I can see your point. For all I know he could be out there practicing law somewhere.”