4. Should witness preparation be kept to a minimum so that a witness does not appear to have rehearsed his/her testimony?
Poorly prepared witnesses are the greatest weakness in any case. Attorneys often fear that a witness will 'look rehearsed' and therefore they will raise suspicions in the jurors' minds. Thus attorneys often engage in only cursory preparation of a witness. Rarely have we seen a witness who was 'too smooth' due to witness preparation. Given that it occasionally might happen, this rare event must be weighed against the overriding consideration that a poorly prepared witness is generally ineffective, and, in fact, can irritate the jury. Over and over again we hear jurors comment negatively on the credibility and effectiveness of witnesses who are poorly prepared, nervous, or do not 'cooperate' effectively during their own direct examination. To the other extreme, it is rare to hear jurors complain about a witness who was relaxed and prepared for hi/her direct examination. In fact, we have heard many jurors express irritation toward an attorney whose witness was confused and unable to communicate effectively. In essence, the jurors report that they fully expect an attorney to have met with a witness and discussed the pending testimony. Failure to do so, is often seen by jurors as an indication that the attorney's lack of interest in the testimony of the witness. Jurors fully expect that an attorney has prepared his or her own witness. They are far more likely to comment on the negative aspects of a poorly prepared witness than to negatively comment on a well-prepared witness.
One important error often made in witness preparation is failing to conduct specific preparation of testimony. Often, attorneys will meet with a witness in the attorney's office and discuss in global terms the nature of the direct examination, describing the topics the attorney intends to cover. Rarely is the witness given a 'dry run' and allowed to formulate answers to the attorney's questions. Rather, an abstract discussion usually takes place with no specific rehearsal is involved.
Much can be learned both by the attorney and by the witness if the witness is allowed to attempt to formulate answers through a dry-run. It is easy to spot a poor choice of words, or an answer that is too expansive or otherwise inadequate. These issues can be ferreted out in the attorney's presence and worked through, rather than allowing a witness to stumble on the witness stand. A witness confused by his own attorney's questions is often mistaken as searching for cues to the right answer, an impression counsel certainly does not want a witness to make.
Beyond merely attempting a walk-through of the direct examination in the informal atmosphere of the attorney's office, it is highly advisable to attempt to evoke some anxiety in the witness during the dry run. They will be nervous in court. Approximating their emotional state creates a better rehearsal, what psychologists refer to as a transfer of learning across different settings. For example, rather than undertaking the mock direct examination one-on-one in the attorney's office, it might be better to move the witness into a conference room, have them sit some distance from the attorney, and have one or two office staff available to sit in on the mock direct examination. The distractions created by the presence of other individuals will heighten the witness' anxiety and thus, a clear simulation of what the witness is likely to do in the courtroom can be created. It is very helpful to the attorney and the witness, if the witness is given an opportunity to confront the task of testifying while somewhat nervous and distracted.
In sum, poorly prepared witnesses draw negative attention to themselves. Well prepared witnesses create little distraction and their testimony is rarely criticized for appearing 'too rehearsed.