10.2 Evidence: Witnesses

Resource:

For more information on preparing your witness check out the  Family law in BC’s witness fact sheet.

You’re going to want to revisit that list of witness you made when you were Building your Case back in Chapter 7. Are these still the witnesses you want to call? Are there any additional witnesses you want to call?  Once you’ve finalized your list of witnesses you should figure out what points you want them to get across.  Making a list of these points will help you tailor your questions to them.  Consider what documents each witness will talk about.  Put all this information into the Witness Worksheet on the next page.

Take this sheet to trial with you. As you go through questioning a witness, cross-off each point when the witness has addressed it.   But before you get to trial you’ll want to prepare your witnesses.

 

Prepare your witness for trial

You should meet with your witnesses a few days before the trial. This will help prepare them for the trial and allow you to make any changes to your case. If you find that their testimony would hurt your case more than help it, you can decide to not call them. Never coach them on what you want them to say. You want your witness to tell the truth in court.

You’ll want to prepare them by going over:

  • Documents – Let them know what documents if any you will be showing them.
  • Your questions – Give them an idea of the types of questions you'll ask them.
  • Cross-examination questions – You won’t know for sure what the other side will ask your witness but you can go over questions you think might come up.
  • Court etiquette – Go over the process with them. What they should be expecting regarding being called, asked to swear or affirm, and asked questions by you, the other side and the judge.  Tell them to address the judge when answering questions.
  • Time and location –Remind them where the court is, which court room you are in and what time they should be there.
  • Remind them to be honest – Make sure they understand you don’t want them to lie even if it helps your case.

 

Subpoenas

There are two ways to bring witnesses to court: (1) ask the witness yourself and (2) serve the witness with a subpoena. The best way is really to ask your witness yourself. You should contact the witness and kindly ask them to appear in court as your witness.

A subpoena is a court form that orders a person to give evidence as your witness in court. To “subpoena a witness” is to bring a witness to court through a subpoena. If the witness doesn’t appear after receiving the subpoena, he or she may be charged with contempt of court. As you can probably tell, a subpoena is not the most pleasant kind of invitation. Seeing a serious court document with their name on it can be quite startling to your witness. That’s why; if possible, you should try to contact your witness before you decide to subpoena them. If you believe your witness won’t appear in court, consider serving that witness with a subpoena.

To subpoena a witness, you need to follow these two steps:

  1. Complete the Provincial Court subpoena form (Form 15) or Supreme Court subpoena form (Form 23)
  2. Serve a copy of the subpoena on your witness personally at least 7 days before your trial

Note that if you want to subpoena a witness, you must offer to pay for that witness’s travelling expenses (Provincial Court) or witness fee (Supreme Court). The amount you offer must be a reasonably estimated amount. 

The witness who has been served with a subpoena must appear at your trial with all the documents or objects that are listed in the subpoena.