From the horse's mouth: Advice from a defense attorney about effective courtroom testimony
See the defense attorney as the enemy and you'll lose credibility
I recently received an email from Mr. Robert “Bobby” Reiff, a DUI defense attorney from south Florida. Mr. Reiff took issue with how I quoted the U.S. Supreme Court in an article I wrote last January titled 5 ways defense attorneys try to trip up cops (and how to beat them). Quoting from U.S. v. Wade (1967) where it discussed the role of defense counsel in our criminal justice system, I wrote,
“Defense counsel has no obligation to present the truth. If he can confuse a witness, even a truthful one, or make him appear unsure or indecisive, that will be his normal course.”
Mr. Reiff was correct to point out my sloppiness. I should have included ellipses to indicate where I had omitted words. Corrected, the quote would read,
“… [D]efense counsel has no … obligation to … present the truth. … If he can confuse a witness, even a truthful one, or make him appear unsure or indecisive, that will be his normal course.”
In our email exchange, Mr. Reiff made some points I thought were good advice for officers in the courtroom. With his permission, here they are.
“Winning” in court isn’t “beating” the defense attorney
I’d like to note that Mr. Reiff wasn’t always a defense attorney. He also worked at the NYPD as an intern in the Department Advocate’s office and as an Assistant State Attorney in Miami-Dade County. In his 37 years of experience, he has found that buying into an “us vs. them” narrative has led to officers massaging the truth or “testilying” to “better make their case.“ He wrote,
“… [A]n officer’s duty is to testify to the truth; what they saw, what they did and why they did it. I have found too many officers have lost their way when they suddenly felt that they needed ‘to win’, that they were on the prosecution’s team or that they needed to justify their actions.”
I agree with Mr. Reiff. In How cops can best prepare for a court appearance I wrote earlier this year,
“If you’re trying to help the prosecutor get the conviction, and you’re trying not to “hurt” the case – do you think that might affect how you testify? Absolutely.
You appear biased to the jury (or judge).”
Appear biased and you can lose your credibility in court. The best way to not appear biased is to not be biased.
Quit taking it personally
In one of my emails to , Mr. Reiff I wrote,
“[O]fficers shouldn’t take offense and need to understand that the Supreme Court in Wade assigned to defense attorneys a very different, but critical role – to provide a forceful defense to the accused regardless of their innocence or guilt and, thereby, test the government’s case and keep its power in check.”
Mr. Reiff said I should’ve included that in my article. So, I’m sharing it here. Defense attorneys are doing their job when they attack an officer’s credibility. If officers have a complaint about that, they need to take it up with the Supreme Court. If they instead take it personally and get defensive, they’ll appear defensive. What kind of people appear defensive? Guilty people.
In the article that Mr. Reiff took issue with, I even suggested officers put a Q-tip in their pocket and take it to court. If they feel themselves becoming defensive on cross-examination, they should squeeze the Q-tip to remind them to Quit Taking It Personally.
Don’t like it? Try Cuba
Mr. Reiff shared this story from his prosecution experience.
“When I was a young prosecutor in Janet Reno’s office, one very pro-prosecution judge I tried many cases before would explain to the potential jurors that ‘the defendant and his counsel have no burden to do anything than to appear in court every day on time. That’s it. If they want to open up a newspaper and read it while the trial proceeds, then they are permitted to do just that. Our system of justice places the burden of proof on the prosecution, and our constitution makes that a heavy burden, ‘beyond and to the exclusion of every reasonable doubt.’ The defendant needs to prove nothing. The defense has no obligation to do anything. And if you don’t like that system, maybe you should discuss that with someone who lives about 90 miles to the south of us (in Cuba) where they have a very different system of justice. Can you all agree to respect and proceed by our system of justice?’”
As Mr. Reiff noted, a defendant may even be a police officer accused of a crime, or, I might add, a prosecutor. I know what system of justice I prefer. It’s one that includes defense attorneys like Bobby Reiff.