Presenting witness testimony and other evidence at court hearings

Anytime you go in front of a judge to have them de cide an issue in your case, you and the other party must present evidence to help the judge make a deci sion. The type of evidence you need will depend on what you need the judge to decide.

There are two main forms of evidence: (1) witnesses, and (2) physical evidence (including documents, rec ords, audio or video recordings, photos, written com munications, etc.).

Witness testim ony

Witnesses are often the most important form of evi dence in family law hearings or trials. YOU will be the most important witness in your case because you were probably a witness to most of the important events in your case. In addition to your own testimony, you may want ask people to be witnesses if they have witnessed important events in your case.

It is very important to know that your witnesses must personally appear at court to testify. Written witness statements are not allowed as evidence at a court hearing or trial by the rules of evidence.

Who should you call as a witness?

There are many people who may possibly be witnesses in your case, below are some examples:

You
Friends or family
Police officers
Child protective services caseworkers
Daycare providers or teachers
Anyone else with first - hand knowledge about any events in your case

How do you get witnesses to show up in court?

If you have a personal relationship with the witness, you can just ask them to testify and provide them with the date of your court hearing or trial. There is no for mal process for having witnesses testify if they agree to show up.

On the other hand, professional witnesses, such as po lice officers, caseworkers, teachers, or others involved in your case because of their job , usually need a sub poena before they will show up in court on your behalf.

You may be able to get a blank subpoena from the courthouse. You will need to fill it out and personally deliver the subpoena to your witness (unless they agree to accept the subpoena in a different way). You will also need to pay the witness a witness fee of $30.

If you cannot get a blank subpoena from the court house, you can hire a lawyer to help you draft and serve a subpoena.

Stages of a witness’ testimony

When a witness testifies at a court hearing or trial, there are three stages for their testimony: (1) direct examination, (2) cross examination, (3) rebuttal.

Direct examination. The first stage of a witness ’ s testimony is direct testimony. If you are the wit ness, direct testimony is your opportunity to tell your story. You should tell the judge everything you want them to know about your case. If you are calling a witness, you will have to ask your witness questions during their direct examination. Don ’ t expect the judge to do this for you. If it ’ s the other party calling the witness, you should simply sit and listen quietly. Do not make faces or respond to the direct testimony of the other party or their wit nesses. You will have an opportunity to respond
later.
Cross examination. The second stage of a wit ness ’ s testimony is cross - examination. Cross - examination is optional. When you call a witness (including yourself), the other party gets to ask you or your witness questions after they finish giv ing their direct testimony. When the other party calls a witness, you can ask their witness questions as well. It is fine to skip cross examination. This usually will not hurt your case. In fact, many par ties often hurt their case by asking cross - examination questions because they give the wit ness the opportunity to keep talking to explain their actions.
Rebuttal testimony. Rebuttal is the last stage in witness testimony. This stage is also optional. This is the opportunity for the person who called the witness to clarify or respond to any information that came out during cross - examination. Some times the judge will skip this stage. If you were the witness and the other party asked you questions on cross - examination that you were not fully able to explain, you can respond and explain your an swers during cross - examination.

Preparing your testimony

To prepare your testimony, it is helpful to write notes or create an outline of what you want to tell the judge at your restraining hearing. DO NOT write down your testimony word for word. The judge will not want you to read from a piece of paper. They will want to hear your story in your own words. Do not submit your out line as an “ exhibit ” (piece of evidence). The outline is just for your own personal use.

Preparing to be cross-examined

The other party, or their attorney if they have one, will be able to ask you questions (cross examine you) after you provide your direct testimony. Here are some pointers for answering cross examinations questions:

Pause, take a breath, and think about your an swer before you respond to the question.
Answer questions truthfully and explain your answers, if necessary.
It ’ s okay to say “ I don ’ t know ” if you do not know the answer to the question.
It ’ s okay to say “ I do not understand the ques tion ” or “ can you clarify what you are asking ” or “ can you repeat the question ” if you did not understand it the first time.
It ’ s okay to say “ I do not remember ” instead of trying to make up details about an incident.
If the judge interrupts you or The other party, stop talking immediately until the judge tells you to continue talking.

Preparing questions for your witnesses

Generally, the judge will expect you to question your own witnesses. A judge is unlikely to question witness es for you. You should think about what information you want the witness to provide to the judge and then prepare a list of questions for that witness.

Here are some rules for questioning witnesses:

Ask your witnesses open - ended questions. Questions that begin with “ who, ” “ what, ” “ why, ” “ where, ” and “ how ” are good questions for your witnesses.
Do not ask leading questions. A leading ques tion is one that suggests the answer in the question. For example, “ tell me about the time you got drunk in front of our child, ” would be considered a leading questions. A non - leading way to ask that question is, “ have you ever got drunk in front of our child? ”
Only ask witnesses about events they have observed directly. Your witnesses cannot tes tify about things that other people told them. Be sure to limit your questions for your wit nesses to things they personally witnessed.

Children as witnesses

Sometimes, children are the witnesses to important events in a case. It is a case - by - case decision to call a child as a witness. There are no laws that prohibit you from calling a child as a witness. There is also no law that says a child must be a certain age to testify. How ever, if you call a child as a witness you risk a judge be ing displeased that you unnecessarily involved a child in your court case. Before calling a child as a witness, you should consider:

Age / maturity of child : A witness must be deemed “ competent ” to testify. They must also be able to provide helpful testimony. Not all children, especially very young children, make good wit nesses. You should consider your child ’ s maturity and age when considering to call them as a wit ness.
Availability of other witnesses : Consider whether there are other witnesses who can testify instead of a child about important events in your case.
Impact on child : You should also consider the effect that testifying will have on the child. Some
children may find it traumatic to participate in a court hearing. Other children feel strongly about speaking out against a parent who has harmed their other parent or who has abused them. They may find it empowering to participate in a court trial.

The other party’s witnesses

You likely will not know who the other party calls as a witness until the day of your hearing or trial. However, you should probably assume that the other party will testify on their behalf.

Cross-examining Respondent’s witnesses

After the other party or their witnesses testify, you will have the opportunity to ask cross - examination ques tions. This is optional. It is unlikely to hurt your case if you skip asking cross - examination questions.

When it is your turn to cross - examine a witness, be sure you are asking the person questions and not mak ing your own statements or testifying. The best cross - examination questions usually start with: “ Isn ’ t it true that . ” For example, “ Isn ’ t it true that you were con victed of Assault IV in 2021?”

Here are some rules and guidelines for cross - examining witnesses:

You are allowed to ask leading questions during cross - examination. A leading question is one that suggests the answer in the question itself. For ex ample, “ You were convicted of assaulting me in 2020, weren ’ t you? ” is a leading question.
You are not allowed to argue with a witness or tell the judge if the witness is lying. If a witness lies in their testimony, you are not allowed to tell the judge they are lying. Thus, you should avoid asking questions that you think the other party or their witnesses will not answer truthfully.
Ask questions that the Respondent or their wit nesses cannot easily deny. Questions about a wit ness ’ s criminal history or child welfare history are generally a good area of questioning