Are you ready to testify?
Tips on being an effective witness
You've just made a big arrest. Investigators have gathered lots of additional evidence and you think the case is sealed...a conviction is in the bag. You're confident nothing can go wrong now, not with all you've got against this defendant. You and your fellow officers have put considerable time into covering all the bases. No stone has gone unturned.
Now it's time to go to trial. You're going to be called to testify. Are your courtroom skills solid enough to help win this case, or does your lack of skill and preparation stand to endanger it? Have you mentally prepared yourself to testify effectively?
Testifying in court may be one of the more difficult and important tasks an officer faces in their career. Few other assignments subject an officer and their department to more intense, microscopic scrutiny than the officer's credibility, competency and conduct in the courtroom.
When you're testifying in court, the jury, the judge, the prosecutor, the defense, the public, the media – all eyes are on you! Your reputation and that of your department may be enhanced or destroyed by your courtroom presentation.
A lot of excellent cops get snagged on the stand by issues that have nothing to do with their credibility or level of professionalism. They get caught up in little things that are preventable through training and practice.
There's another equally important reason for you to care about being an effective witness in the courtroom. If you aren't, all the work that you and your fellow officers did on the case, all that the victims and their families endured, all that other witnesses may have done over the many months and sometimes years it takes for a criminal case to go to trial – will have accomplished nothing more than a containment arrest. A single police officer's ineffective presentation in the courtroom can result in the acquittal of a defendant, no matter the amount of solid evidence you may have collected.
Pressure? You bet! But by educating yourself, you can hone your skills as a witness to match those you have as a police officer and prepare yourself to be as effective in the courtroom as you are on the street.
Here are tips for success in the courtroom:
1. Dress for success
Dress for your court appearance with the same attention to detail you would in going before a promotion board. You should be exceptionally neat – fingernails clean, hair trimmed, clothes pressed, shoes shined.
Carry only the essentials – avoid items that jingle, jangle, flash, shine or otherwise distract.
Your department policy may dictate whether you wear a uniform or civilian clothes when you testify. Often, on-duty officers will wear a uniform and off-duty officers will wear civilian attire.
In state and local courts, you may be armed whether you are in uniform or not. (In federal courts you generally won't be permitted to wear your firearm into court.) Be aware that some jurors are distracted by the sight of a witness in civilian clothes armed with a gun and carrying bullets, handcuffs, etc., even if they are testifying as a police officer. Discuss this possibility with the prosecutor before your appearance to decide what you should and should not carry.
2. Making your entrance
Mentally prepare yourself for the fact that when you enter the courtroom everyone – jurors, judges, spectators, attorneys, the defendant and court staff – ALL will be watching your entrance. Stay poised and remind yourself that this is how every witness is viewed. Don't avoid looking at the judge or jurors; look back at them as you would a person speaking with you.
3. Taking the oath
Sometimes, police officers who frequently testify in court come to view the taking of the oath as a rote exercise. This is clearly communicated in their attitude and demeanor. They may only partially raise their right hand and hold the fingers in a relaxed, cupped posture. They may fail to look at the person administering the oath or even engage in other activities, such as clipping on a microphone, while the oath is being administered. They may start to seat themselves while saying, "I do."
Stop and consider what this communicates – even unintentionally – about the witness' respect for the truth. Much of a juror's impression about a witness' credibility is based upon the witness' demeanor rather than what the witness actually says on the stand. The last thing a law enforcement officer wants to communicate is a cavalier attitude towards the truth.
The taking of the oath is an excellent opportunity for you to make a strong, credible first impression within which all subsequent testimony will be viewed.
While taking the oath, look at and seriously listen to the person administering it. Keep your right hand at shoulder level with your wrist and fingers extended until the oath is completed. Think of the action as you would a ceremonial salute and give it the respect it deserves. Make eye contact with the jury as you say, "I do," or immediately after. Remember, the oath is your word of honor, your personal promise to the jury that they can trust you.
4. Prepare yourself for the first question
It's normal to be nervous and anxious on the stand. You might sweat, shake, have trouble focusing, forget everyone's name (including your own!), speak too rapidly, speak in a monotone voice, your voice may involuntarily raise or lower...all of these symptoms are normal. Remind yourself of that.
Some pointers to help you compose yourself: Sit up straight, but not stiffly. A normal reaction to the stress of being on the stand is slouching in your chair. Don't let yourself start slouching as it may progress as your testimony continues.
Orient yourself in the courtroom. Look at each of the walls within your vision without turning around. Look at each person or group of persons in the courtroom.
Finally, don't forget to breathe! Remember: "Poise is the ability to be ill-at-ease inconspicuously."
[Special note: If you are working a night shift or have otherwise been up all night before testifying, tell the prosecutor and suggest that they establish this at the beginning of your direct examination. Sleeplessness (or illness) cannot help but affect your demeanor. The jury should have this information so they can evaluate it for what it is and avoid drawing negative inferences.]
5. As you testify…
Listen carefully; think before you speak.
Look and be attentive. This communicates that you care about being accurate and responsive. Take the time you need to fully understand the question and give the proper response. It doesn't hurt to appear thoughtful. Organize your thoughts; don't be hasty.
Answer the question being asked.
It's tempting to add information to your answer that you think helps advance the prosecution's case. Resist this temptation. First, this is the prosecutor's job; let the prosecutor develop your testimony. Don't jump ahead, don't anticipate, just answer the question that is asked.
Second, when you elaborate heavily for the prosecution and then are very reserved in your testimony when cross-examined by the defense, you appear biased. This undermines your credibility as an objective reporter of the facts.
Third, adding extraneous information to your answer opens up other areas for cross-examination. Remember: "Nothing in this world is opened by mistake more often than the mouth."
Speak a little louder and slower than you think is necessary.
Don't inject long pauses between words, phrases or sentences but do concentrate on making each word clearly heard and understood.
Be sincere and dignified.
Trials are serious matters for everyone involved. Refrain from wisecracks and clever remarks. On the other hand, don't hesitate to laugh at yourself or an unexpected occurrence, if appropriate. Avoid appearing frozen, calculated or completely devoid of emotion.
Remain calm and respectful.
This is critical. It's this simple – if you, as a law enforcement officer, lose your cool on the stand, no matter what kind of case, you lose all credibility with the jury. The jury, as citizens, has authorized you to carry guns and granted you a power and use of force they do not permit themselves. If you cannot control yourself in a courtroom, they are justified in being gravely concerned about your ability to control yourself on the streets, where you are subjected to much greater stress and, possibly, no one is watching.
Your patience and temper will be sorely tried with interruptions, delays, argumentative questions and attacks on your character. Do not allow yourself to become arrogant, flip, antagonistic, impatient or excited. The worse it gets the greater an opportunity you are being handed to impress the jury with your strength of character, your integrity, your dignity.
Like it or not, as a law enforcement officer, jurors hold you to a higher standard than they do lay witnesses and they expect you to be able to take more abuse on the stand and still remain professional. Be aware that experienced prosecutors know this and may not come to your defense as quickly as they might a lay witness with an objection that the defense is "being argumentative" or "harassing the witness." Take this as the compliment it is. The prosecutor knows your credibility will shine through such challenges and knows the jury will become frustrated, impatient and finally angry with your attacker.
Speak clearly and plainly.
Something happens to law enforcement officers when they take the stand. For some strange reason, they begin talking like they never do in real life. Why this occurs is a mystery. Is it taught in secret sessions at the academy? Is it in the water they drink at the department?
Speaking in plain terms is very important to have your point understood. It also influences the way the jurors – and the judge – perceive you. Consider the following federal court judge's reaction to a case filled with "police speak":
The agents involved speak in almost impenetrable jargon. They do not get in their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. They do not watch or look; they surveille. No one tells them anything; they are advised. An agent does not hand money to an informer to make a buy; he advances previously recorded official government funds." [U.S. v. Marshall, 488 F.2d 1169 (9th Cir. 1973)].
Do not try to impress the jury with your superior intelligence and vocabulary. If it's necessary to use technical terms, explain their meaning. Avoid slang and answers such as, "yeah." Don't fill pauses with "um," "uh," "you know." It's O.K. to simply pause in silence and collect your thoughts. The jury won't fault you for appearing thoughtful.
Describe rather than conclude.
Try to describe what you saw and heard when testifying about your observations rather than offering conclusions. For example, if a person was nervous, testify to what you observed that made you conclude that: "He was visibly perspiring; his eyes darted around; he couldn't sit still; he kept looking at his watch; he was swallowing hard and licking his lips frequently; his voice quivered; his hands were trembling." [ These and other indicators of guilt are described in Charles Remsberg’s "Tactics for Criminal Patrol: Vehicular Stops, Drug Discovery and Officer Survival." Testimony like this is more effective not only because you appear more objective and unbiased but because it is simply more interesting. Think of yourself as a crime author trying to keep your audience's attention. A detailed description is much more effective than mere conclusions.
When being questioned, look at the examiner; when answering, look at the jury.
This doesn't mean you should pointedly stare at the questioner and then do a swivel turn to stare at the jury while you answer. Don't act like you're watching a tennis match. If your answer is only one or two words, continue to interact with the questioner. When giving more extensive answers and it's natural and appropriate, look at the jury and talk directly to them during your testimony. They are your audience.
Don't hesitate to have a question rephrased or clarified.
Do not answer a question you don't understand. Do not guess at what the question is asking. It may be difficult to admit you don't understand a word the examiner is using, but it is certain at least one juror shares your confusion.
Consider this humorous example taken from an actual court transcript:
Q: James stood back and shot Tommy Lee?
Q: And then Tommy Lee pulled out his gun and shot James in the fracas?
A: (After hesitation) No, sir, just above it.
If you don't understand a question, don't simply ask the examiner to "repeat" it. Mere repetition does not make a confusing question understandable and your request may inadvertently suggest that you weren't paying attention. Instead, admit that you don't understand the question and ask the examiner to rephrase or clarify it. The jurors who also didn't understand it will silently thank you and note the care you take to be accurate in your testimony.
"I don't know," vs. "I don't remember."
When you are sure you don't know the correct answer to a question, say so clearly and confidently. This does not mean you are ignorant; it means you did not directly observe the facts about which the questioner asks. However, if you're not positive that you do not know, say, "I don't remember." This is an important distinction. If you say, "I don't know," you close examination on that point. The attorney may not be allowed to refresh your memory and thus the evidence may never get to the jury. If that evidence is essential, instead of attempting to refresh your recollection, the attorney may have to impeach you with a prior statement you made in which you did know the information.
Refer to your report or notes, if necessary.
Opinions differ on the advisability of an officer referring to notes and reports while testifying. Some officers think that the jury is more likely to trust notes and reports made closer in time to the events recorded and will, therefore, give more weight to testimony directly from this written documentation. Prosecutors and judges generally prefer a witness testify from their recollection directly, without relying on notes and reports. This is not to say that if you need to refer to your report to refresh your memory in order to give complete and accurate testimony you should hesitate to do so. But, DO NOT rely on reading from or repeatedly referring to your report as a substitute for thoroughly preparing and refreshing your recollection BEFORE your testimony.
Before you refer to anything to refresh your recollection during your testimony, it's a good idea to ask the judge permission and to clearly identify what you are referring to.
[Special note: Be aware that the rules as to when notes used to refresh your recollection are discoverable to the defense differs amongst states and the federal rules of evidence. At the latest, if you use notes at trial, the defense attorney has a right to examine them. Moreover, anything you might use to refresh your recollection on the stand should have long ago been provided to the prosecutor who can ensure compliance with all rules regarding discovery obligations.]
Do not discuss your testimony with other witnesses.
In most criminal trials, one or both attorneys have invoked the testimonial "exclusionary rule" which excludes a witness from being in the courtroom and listening to the testimony of any other witness. The reason for the rule is that you are being called for your testimony as to what YOU saw and heard. People are naturally influenced by what they hear. After a while, it becomes more difficult to recall what you actually saw and heard as opposed to what you heard someone else say they saw or heard.
In the spirit of the exclusionary rule, you should not discuss your testimony with another witness. Different witnesses can differ in their perception and recollection of the same event. The jury doesn't expect you to necessarily agree with or parrot other witnesses' testimony. If you do, it suggests collusion or rehearsing.
In many courts, jurors receive an instruction from the judge regarding discrepancies between the testimony of witnesses. This instruction, which is usually part of a longer one that provides guidelines on judging the credibility of witnesses, often includes a statement similar to the following:
“You should bear in mind that inconsistencies and contradictions in a witness' testimony, or between the testimony and that of others, do not necessarily mean that you should disbelieve the witness. It is not unusual for persons to forget or to be mistaken about what they remember and this may explain some inconsistencies and contradictions. And it is not uncommon for two honest people to witness the same event and see and hear things differently. It may be helpful when you evaluate inconsistencies and contradictions to consider whether they relate to important or unimportant facts." [Taken from Alaska's Pattern Jury Instructions].
Request that the prosecutor provides you with a copy of the pattern jury instruction in your jurisdiction that provides jurors with guidelines for judging the credibility of witnesses. It's surprising how many officers, even those who testify frequently, are unaware that the jury receives such instruction or is unaware of its content. It's your credibility being judged. Wouldn't you like to know the criteria? Keep a copy of the instruction and re-read it before beginning every investigation and each time before you testify. The instruction provides tips that will help guide you along the path to being an effective witness.
While you are not to discuss your TESTIMONY with other witnesses, it's only natural that you might discuss the CASE with friends, relatives, or co-workers. Do not hesitate to acknowledge this on the stand. Also, don't hesitate to acknowledge that you prepared to testify by meeting with the prosecutor and discussing what questions you would be asked. Testifying is a serious and important responsibility and you would be derelict not to prepare for it.
Profanity should be used in court only if it is a direct quote. Moreover, you should warn that profanity was used and ask the examiner if they wish to have it repeated. This shows your respect for the jury's sensibilities and emphasizes the indecency of the language, which is usually the defendant's or a cohort's.
Addressing the court.
Always use the term, "Your Honor." "Judge" is too familiar and informal, except when combined with the judge's name in referring to an absent judge in the third person.
The credibility and competency of law enforcement officers are being challenged and attacked in the courtroom more than ever before. The burden of those officers who fail to meet the challenge is borne by every law enforcement officer, and by every victim whose crime goes unredressed because we did not properly train and mentally prepare for our courtroom confrontations.
Looking back on the years I spent as a state and federal prosecutor, most of the many fine police officers I saw wounded on the stand in courtroom confrontations could have easily been victors had they just been properly trained and prepared for these encounters. Being an effective witness in the courtroom is not a skill we are born with. The good news is that it is a highly trainable skill.
This article, originally published 10/22/2007, has been updated