WITNESSES!—Part 2 of 4: Willingness of the Witness

The title of this article—with an exclamation point—says it all. Witnesses are often considered to be the secret weapon and the best evidence to present in Court. However, the reality is quite different than most of us believe. Witnesses are limited by a number of factors including:

  • Availability
  • Willingness
  • Court Rules
  • Credibility

WILLINGNESS OF THE WITNESS: It is not uncommon for a person going through a divorce or custody case to believe they have a witness to the behavior of the other party who will testify on their behalf. However, many litigants discover that the witness they believed would testify in their favor, suddenly appears unwilling to do so. This article briefly touches upon a few of the many considerations when determining witnesses—and how a Court’s interpretation of the issue affects those determinations. It is not meant as an instructive treatise by any means, but as an introduction to an issue not regularly encountered by non-attorneys. The information contained, here, does not constitute a legal opinion nor is it legal advice.

In family law cases—unlike criminal cases–the “willingness” of a witness is often essential. You will want a witness who voluntarily testifies on your behalf so that their testimony is based on their wanting to help you—not based on a subpoena mandating they appear in Court. A subpoena brings with it a certain amount of trepidation based on the inconvenience and emotional and financial cost of testifying. Having a friend or relative who wishes to testify because they believe in your position and that you are right is ideal. Having a reluctant witness who is afraid to speak openly or is angry at the inconvenience your case has caused, means their testimony’s positive impact for you will limited.

Unfortunately, it is not uncommon to have a witness who tells you initially that they would be willing to testify; however, that witness then reconsiders testifying as they realize they must face the opposing party in Court. For example, neighbors who were present to witness the bad behavior of an opposing party—and tell you they “saw everything”–suddenly realize that the opposing party will still be living next door when the court date is over. The neighbor fears retaliation or is uncomfortable with the active role they are being asked to play. Family members who supported your position when you told them about an opposing party’s behavior, may not want to speak formally in Court about what they know. They may also fear retaliation or they may know facts that are unfavorable to you that would be brought out under cross examination. Sometimes, they simply do not want to get involved. They are willing to provide emotional support to you, but that is their limit.

Sometimes, more practical considerations enter into willingness to testify. Missing work, using up a vacation day to testify, finding child care and the health of a witness—both physical and emotional health—can also figure into willingness to testify. At times, having a witness testify by telephone can help ease some of the reluctance. Telephone testimony cuts down on time away from work or if there are child care or health concerns that prevent appearing in Court without significant inconvenience to a witness. Telephone testimony also eliminates the need for the witness to travel. While Court often grant ancillary witnesses the right to testify by telephone, each circumstance is unique. There is no guarantee that a Court will allow telephone testimony. Also, testimony given in person—rather than by telephone—is usually more persuasive to a Court. The Court has the ability to see the witness testify and judge the credibility of the witness based on the Court’s observations—not just what the Court heard.