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Leonardo Angiulo: What to do when you get served a summons to appear in court as a witness

Monday, July 09, 2012


If you think about it, being a witness in a trial is a great deal. You get the experience of participating in a unique American institution, the jury trial, without having to worry about the outcome. All you have to do is listen to some questions and answer truthfully.

To start, a summons to appear in court is essentially an order to be in a particular place at a particular time. Typically, that place is the courthouse and the occasion is the trial of a criminal or civil case. Almost every day of the week in courthouses across the Commonwealth people get asked to tell what they saw and heard on a particular day. Participating in the process is a court order, it's important and it's what makes our system of justice work.

Massachusetts Rules of Criminal Procedure 17 and Civil Procedure 45 identifies exactly what Attorneys are supposed to include in their notices to witnesses and those requirements take most of the guesswork out of the process. When you receive the summons, all of the necessary logistical information will be present on the face of the document. One suggestion is to keep the actual summons in a safe place so instead of trying to remember when and where you need to be you can actually look at the summons to remind yourself.

Now a summons is, in fact, a court order to appear. As such you have an obligation to follow the instructions contained within it. What happens when you get to court, however, can be a little less cut and dry. Take, as an example, a situation where testifying means a person would make statements about their own illegal conduct. That witness has an obligation to appear because of the summons but also has the right, afforded by the Fifth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights, to remain silent. When these two circumstances come together, you simply appear as required and invoke your right to remain silent on the stand. Whether or not you have a right to remain silent requires an analysis of particular facts and there are plenty of attorneys who can help you understand your rights as well as other privilege laws that might apply to you.

Sometimes, a person becomes a witness just by being at work or going about their daily life. As such, they had a unique opportunity to use their five senses to perceive an event as it was happening. The principle behind testifying is to share that experience with the judge or jury deciding the case. Whether testifying for the Commonwealth or a defendant in a criminal case or for either party in a civil suit the process is about the same and the obligations are identical. The number one rule is to testify truthfully. Not only are you sworn under oath to tell the truth, but failure to uphold that oath is a crime. On top of that, lying in a witness box is waste of everyone's time and leads to nothing but tragedy.

Testimony of any witness is a two step process. The first step is direct examination. Some examples of direct examination questions are things like: “do you remember insert relevant date here,” “where were you living on that date,” “what, if anything, did you observe at that place on that date.” Direct examination is designed to permit an attorney to ask a non-leading question to prompt the witness into giving relevant observations. By relevant observations what I mean is getting the witness to share whatever experience they had that sheds light on whether a crime occurred, or not, on a given day. Good direct examination questions are all about getting a firsthand account from a witness with the purpose of offering evidence for the decision maker to consider.

Cross-examination questions are also about the evidence available to the decision maker. The form of those questions is very different. Unlike direct examination, good questions on cross are designed to be answered with a yes or no and take small steps toward conclusions. The trouble with court room dramas on television is that people get the idea that every good cross examination leaves a witness in shreds. Sure, sometimes that’s what needs to happen. Sometimes, however, a witness doesn't need to be verbally attacked. Sometimes a witness on cross examination is able to give the cross examiner plenty of information that is helpful but didn't come out on direct examination because the right questions weren't asked. Whether a cross-examination should be an aggressive confrontation of prior inconsistent statements and other challenges to witness credibility or an easy evaluation of a witness' memory depends on the facts of a case and is the type of strategy decision that lawyers wrestle with while preparing for trial.

What is constant is that every experience as a witness will be different just like every case is different. No matter what you did or did not experience, being a witness is a chance to be a part of our system of justice and an easy thing to do. All you have to do is tell the truth.



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