3 tips for testifying
Just as there are important tactics for officers to know during a police incident, there are equally important tactics to use in the courtroom
The attendees of the California Association of Tactical Officers (CATO) 2019 Annual Conference were fortunate to participate in a wide host of training opportunities, ranging from hands-on, practical instruction tracks to incident debriefs and classroom presentations from the best minds in the business.
While much of the instruction was “high speed, low drag,” there was one class in particular that really caught my eye. The “Preparing to Testify” seminar presented by the Governmental Entity Liability Team at Manning & Kass, Ellrod, Ramirez, Trester LLP wasn’t painted in multi-cam and covered with Velcro, but it was definitely tactical.
Just as there are important tactics for officers to know and use during a police incident, there are equally important tactics that they must know and use when they get in the courtroom, later. This seminar was all about teaching those tactics to officers so that they don’t screw up a good job in the streets with a bad job of testifying.
The Governmental Entity Liability Team (hereafter, “the team”) is led by Eugene P. Ramirez and Missy O’Linn and is composed of individuals with an impressive professional background, to include service as law enforcement officers and trainers, public defenders and district attorneys. The team understands the job you do and has extensive experience representing individual officers and agencies. They also know the traps and pitfalls that await you in the courtroom and spend a lot of effort trying to educate officers on how to avoid unnecessary trouble while providing effective testimony.
Some of their education efforts center on helping cops to understand the law and keep abreast of the new developments that arise from ever-changing case law. Others focus on equipping officers with the tools they need to make good decisions in the field – ones that will withstand scrutiny in court, later. Other efforts, like the seminar I attended, focus on helping officers to be effective in the courtroom.
3 qualities for effective testimony
To that end, the team focused on three important qualities that an officer must have to provide effective testimony in court. An officer who wants to make a positive difference in the outcome of a trial must be confident, credible and likable.
It’s critical for you to look confident in your words and actions while testifying. If you don’t look like you have faith in yourself, then how are you going to convince the jury to have faith in you and your story?
The most important part of confidence in the courtroom is to be prepared and know your stuff. To that end, the team discussed doing a thorough review of all documents, audio, video, evidence, photos and department policies before deposition or testimony. The opposing counsel will try to discredit you on the stand, but you can make this much more difficult for them to achieve if you are thoroughly familiar with all the relevant materials that can be considered during the trial. Of course, this will take a lot of work ahead of time, and it’s not something that can be done just a few hours before your court appearance.
Another part of confidence is to be in control of your body language, and avoid giving off non-verbal cues that betray you. For example, your posture, movements, habits and eye contact can all help to make or break the image you are trying to portray. The same goes for your voice and emotions, and the team had some exceptionally good suggestions on how to keep those under control.
For example, officers who display signs of nervousness or distress might unknowingly communicate a signal that their testimony is unreliable. An officer who displays nervous ticks, rubs his face or neck, or hides his face by holding his hands in front of it in a folded or praying position, may generate distrust in the jury. An officer who blinks uncontrollably or has difficulty maintaining eye contact may do the same.
In order for the jury to believe your testimony, you have to come across as a credible and truthful person. Without this, your testimony will be rejected or ignored.
One way to help establish your credibility is to be prepared to discuss your education and training history in detail. The team noted that many officers on the stand are hesitant to “toot their own horn,” so they often downplay or short change their training and experience. This can be a terrible mistake because nobody is better prepared than you to explain to the jury the vast extent of your training, knowledge and experience, and establish your credibility as an expert on the subject.
Another way to help establish your credibility is to know your craft. Police officers who fail to have a solid understanding of the law and department policies are easy targets for opposing counsel who wants to discredit them in front of a jury. If you’re testifying in a trial where force was used, for example, it will go very bad for you if you’re unable to articulate your department’s policy, and explain how your actions were consistent with it and the relevant legal statutes.
There’s a host of “red flag” actions that can be interpreted as signs that you are lying, such as rubbing your face or neck, hiding your face behind your “praying” hands, or failing to make good eye contact. You’re good at looking for these kinds of non-verbal cues on the street when you’re dealing with suspects, but you also need to make sure that you’re doing them yourself in the courtroom.
Yet another credibility killer mentioned by the team was the recurring use of “I don’t know/recall” in your testimony. There are some things that you truly won’t know or recall when testifying, and there are times when it is appropriate for you to say so. However, if you establish a routine habit of using this phrase without some kind of additional context or explanation, you run the risk of looking like you’re hiding something from the jury.
Perhaps the most important thing you can do to establish your credibility though is to provide a good first statement. If you get the statement right the first time, you won’t have to go back later and make corrections or additions that can be interpreted as an effort from you to change the story. O’Linn warned that “every time you tell the story, it becomes harder and more perilous to make necessary changes or corrections,” so the team urges officers that are involved in a use of force incident to walk through the scene, watch the videos and get a few sleep cycles’ worth of rest before making a detailed statement to investigators.
The team noted that “nobody votes for the guy they don’t like,” and while your trial testimony is not a popularity contest, it’s important for you to be likable if you want the jury to be receptive to your message.
To that end, the team discussed having a professional and neat image, courteous behavior and control of your emotions. That last part – controlling the emotions – is particularly important! The opposing counsel will try to antagonize you and make you look dumb, angry, or deceptive as a way of discrediting your testimony. You won’t do yourself any favors if you take the bait and allow them to get a rise out of you, so the team had a host of helpful suggestions on how to manage this bit of trial trickery.
The team also addressed the issue of whether an officer should testify while in uniform. In many cases, wearing your uniform in court can be a risk, because it raises a whole host of possible “authority issues” that can harm your likability. Additionally, in certain venues, like federal court, you will not be permitted to wear your firearm, and this can negatively influence your comfort and confidence while in uniform, which could then alter the jury’s perception of you.
So much more
The “Preparing to Testify” seminar at the CATO 2019 Annual Conference was packed to the gills with information. This is the natural result of trying to summarize a trial preparation process that can normally take weeks or months in just a single, eight-hour block.
The officer who is required to use force in the course of their duty must first win their encounter on the street, but they must also be ready for the next phase, in the courtroom. That requires training, and working with a team of professionals like those at Manning & Kass, Ellrod, Ramirez, Trester LLP is the best way to get it.