Witnesses

A witness is a person who gives testimony under oath. They can testify about something they saw, experienced, or know to be true. Sometimes a witness can provide testimony through a written affidavit, which you can give to the court as evidence. Depending on your case, a witness may be helpful or even necessary.

A witness can:

• Testify about something that you have no other proof of. For example, you do not have a record or receipt of a loan from a friend. Your friend can testify about the loan in court. Another example may be if you paid someone for childcare but do not have a receipt. The childcare provider can be your witness.
• Support your own testimony or story. For example, you had a bruise but did not take a photo of it. A family member who saw the bruise can testify about its size, color, and location. Another example may be a friend who saw the other party drive an expensive car but they say they cannot afford child support.
• Lay a foundation for evidence that you want the court to consider. Your witness can authenticate certain evidence. This means to show that it is what you say it is. To do this, the witness must be familiar with the evidence. For example, a witness can explain that a photo shows what they saw at the time. Or, hospital staff can say that a medical record is a “fair and accurate” record. To learn more, see our “Evidence” guide.

You may also want to use an expert witness. An expert witness is someone who can give a professional opinion, not just facts. One example may be a doctor to give a medical opinion. Experts are mostly used in custody cases.

Keep in mind that you may need to pay the expert witness to testify. This can be expensive. Expert witnesses also require different kinds of notice and rules. If you think you need an expert witness, it may be best to hire a lawyer if you can. Or, you can ask the court if you qualify for a court-appointed lawyer. Do this as early as possible.

Note

Your witness can voluntarily agree to testify. If not, you may need to subpoena the witness. See our guide on “Subpoenas” to learn more.

When choosing a witness, it is important to remember the following:

• In general, a witness can only talk about things they personally know. This means they must have seen, heard, or experienced it themselves. They cannot just say what someone else told them. This is called hearsay. Hearsay is usually not allowed, but there are exceptions. See our guide on “Objections” to learn more.
• The witness should be credible, or believable. A witness can be more credible by speaking clearly, being consistent in their testimony, and giving details.
• The witness’s testimony must be relevant to the case. This means that what they testify about must be related to the case and help prove or disprove an important point.
• The witness does not need to speak English. The court can give you a free interpreter. Just be sure to ask for one before the court date.

You should speak to a potential witness before trial. This helps you know what they are willing to say under oath and how they might across to the court. This also helps you avoid surprises in court. Then, you can decide if you need more witnesses or evidence. Just remember that you cannot tell the witness what to say.

Tip

The other party can question your witness during cross-examination. If your witness is a close friend or relative, the other party may try to show they are biased or trying to protect you. If your witness testifies about specific facts and observations, this can help overcome the bias. See our “Direct Examination” and “Cross-Examination” guides to learn more.

Maybe. Check with the court to see if a witness list is required and when you must provide it. A witness list helps everyone prepare for trial. If the court asks for a witness list, you should give it to:

• The other party (or their lawyer);
• The Attorney for the Child (if there is one); and
• The court

The list should include each witness’s name and who they are. For example:

• Mr. José Smith, Child’s Teacher
• Ms. Juanita Jones, My Employer

Sometimes the court will ask for a brief summary of what each witness would testify to. For example:

• “This witness will explain that the school records are fair and accurate. The records will show how many times our child was absent.”
• “This witness works with the other party, even though they claim to not have a job.”

The court may ask how much time each witness’s testimony will take. You do not need to be exact. Give your best guess.

If someone is not on the list, you may still be able to call them as a witness. You probably need to explain why they were not on the list. Some good reasons may include:

• You did not know a certain topic would come up;
• You need to respond to something that came up during trial; or
• Another witness said someone was present during an event. You want that person to testify because there may be a different version of what happened.

Not necessarily. Remember that you are your own witness. You can testify about what you saw or heard, how you felt, and what you know is true. Be specific and include details, like how you know something. For example, you might say something like, “I saw the other party’s pay stub so I know she makes $5,000 per month.” You can also present evidence to support your case. See our guide on “Evidence” to learn more.

Family Legal Care offers free legal information and advice on New York family law and court procedure. Call our Helpline at 212-343-1122 or visit our Get Help page.

This document only provides legal information and should not be considered legal advice. If you are seeking advice, please consult with an attorney. Family Legal Care does not provide people with legal representation and no attorney-client relationship has been established through your use of this document. Family Legal Care encourages all individuals involved with the Criminal and Family Court systems to consult with a lawyer.