Giving Testimony: High Anxiety Part 1

As a lawyer and judge, I have been around people giving testimony for about 40 years. Every time I reach the end of a trial or a round of depositions (before trial testimony given in lawyers' offices), I promise myself to write about the experience that I have seen so many go through (and occasionally gone through myself). Here are some of my observations about testifying for good or ill.

The anxiety begins with the Oath or Affirmation.

Anxiety, often high anxiety, is built into the process of testifying. Giving any testimony requires that you raise your right hand and swear or affirm, to tell the truth, the whole truth and nothing but the truth.

Swearing an oath to testify truthfully is in the form of, "Do you solemnly swear the that your testimony shall be the truth, the whole truth and nothing but the truth?" to which the witness responds, "I do." The purpose of the oath is to impress the witness with the solemnity of the trial and summons thoughts of divine retribution for lying under oath (which is also a seldom prosecuted crime called perjury). While I have never seen bolts from the sky strike down a perjurer, I have from time to time moved my chair to put greater distance between me and a witness that I highly suspected was lying. You know, just in case.

As an alternative to taking an oath, a witness may "affirm the tell the truth, the whole truth and nothing but the truth under the pains and penalties of perjury." The reference to "pains" refers to torture being part of the ancient criminal justice system's wide array of penalties for those who lie in their testimony. Interestingly, while I understand the affirmation arose at least in part because a witness who did not believe in God could not take an oath by someone they did not believe in; affirmation has become the preferred way of a religious witness to not violate the instruction of Matthew 5:34 (But I say unto you, Swear not at all; neither by heaven; for it is God's throne).

Regardless of the alternative, the oath or affirmation is designed to give the witness a reminder and warning that their truthful testimony is important to the process of justice. As a judge used to say, "We are in a Court of Law, not the Corner Bar." Even witnesses who have no intention of lying feel their heart rate increase and have other signs of anxiety which is supposed to produce the truth, at least that is the theory.

So how can you prepare yourself for giving testimony and not come away from the experience with post-traumatic stress disorder? I believe that knowledge is power. The more knowledge a potential witness has about the process of giving testimony, the greater the ability to walk the path without long term trauma and tell the truth.

Hence, this series of observations.

Thomas D. White

Senior Partner