Overcoming the terror of testifying
The key to effective law enforcement testimony lies in preparing for it like you would an exam, so you can combat your natural anxiety and remain in control
By Eric Starnes
Policing can be thrilling and adrenaline-packed. But for some of us, nothing gets the heart pounding harder than being called to the witness stand, especially for the very first time. Solid preparation is the best way to combat the terror of testifying. Poise and self-control will give you the appearance of confidence, even when you are shaking in your shoes. Think of testifying as a big, important exam. With proper preparation, you can pass that test and become a great witness.
Anxiety: The Big Black Umbrella over the Entire Proceeding
Courtroom anxiety stems from many factors, including the high legal burden to prove guilt beyond a reasonable doubt. But fear of public speaking, lack of control over the court process and horror stories told by other officers may add to the stress of testifying.
Interestingly, fear of public speaking is the most common phobia, ahead of death, spiders or heights. The National Institute of Mental Health reports that public speaking anxiety affects about 73% of the population. The courtroom places law enforcement witnesses on display before a judge, a court reporter, jurors, the defendant and the defendant’s counsel. If the case is high profile, there will also be interested persons and reporters all hanging on your every word and even your appearance. A verdict may feel like a judgment of both your work product and the defendant’s conduct.
Law enforcement officers are accustomed to being in control of complex situations. Most of us are comfortable wading into a crowd of people and bringing order to chaos. From the academy through training and from field experience, we develop command presence; we are accustomed to being in charge. When we enter the courtroom, however, we are no longer in charge. We are no longer asking the questions – we’re answering them. The attorneys control the trial, refereed by the judge, who decides whether we answer, whether evidence comes in or stays out. This loss of control may feel uncomfortable.
Horror stories from co-workers who experience a tough day on the witness stand, led all over the place by crafty defense counsel, may add to our pre-appearance anxiety, but they may also prepare us for what to expect. Listen and learn!
Reducing your courtroom anxiety starts long before the court date. A pretrial meeting with the prosecutor is a must, even on a misdemeanor case. The pretrial meeting is an opportunity for you and the prosecutor to identify and discuss any weaknesses in the case and how best to address them, head-on. It is important to go over case reports and evidence to make sure all appropriate materials are provided to the defense. Even prior to this meeting, familiarize yourself with your case report. This will start to build your knowledge of the case and help address any issues. This is also an opportunity to verify you are ready to bring an A-level performance to the “exam.”
As your court date nears, there are ways to combat the fear and appear confident on the witness stand. When you perform your job appropriately and adequately, the defense counsel is left with very little to work with. This is why it can help to think of a court appearance as a test. Knowledge is easily defendable, but it takes proactive measures.
Specifically, be prepared to defend against three common defense counsel attacks:
1. Knowledge of the facts of the case
One of the main areas the defense will attack is your knowledge of the facts in the report. Thoroughly investigating and documenting your incident is key. This is like the open book part of the test. If you have ever taken an open-book test without preparing for it, you may have found yourself scrambling for answers. If you had prepared ahead of time, you probably found yourself breezing through the exam. Prepare for the open-book test by studying the report well enough to know where the answers are located. Additionally, review any relevant video and take notes if necessary. Chances are there is a lot in the video that may spur independent recollections not in the written report.
2. Knowledge of laws, policies and procedures
When factual attacks are not working for the defense lawyer, they may attack your knowledge of laws, policies and procedures. When preparing for court, study up on any relevant laws or training you have received in the specific issues surrounding your case. If necessary, take a copy of these laws up to the stand. The defense lawyer may want to examine what documents are taken to the stand. If they walk off with your papers, ask for them back. If there are policy issues relevant to the case, study up on your policy. It is not uncommon for a defense lawyer to get a copy of any relevant policies or training manuals on which you relied, such as impaired driving training manuals.
Remember the three levels of police/citizen interaction: consensual encounters, detentions and arrests. Depending on the type of case, some defense lawyers will want to attack your assessment of the type of encounter. When reviewing reports, think in terms of where the interactions shifted from one type of encounter to another.
3. Your character
The third area of credibility attack is an attack on your character. Defense lawyers often use open records requests and subpoenas to obtain personnel files. If you have even a slight negative mark in your personnel file, let the prosecutor know early. The prosecutor may be able to get a protective order or limiting instruction if there is no relevance to the case. This will prohibit the defense lawyer from dropping a bomb in the middle of trial. If a protective order isn’t a possibility due to relevance, you can discuss with the prosecutor how to get out in front of the issue so as to take the wind out of defense counsel’s sails. Remember, what you have put out on social media could possibly show up in the courtroom.
Finally, don’t argue with the defense lawyer while on the stand. Most questions will be phrased for a yes or no answer. Listen carefully to the question. If the question is a compound question or not comprehensible, ask for clarification. Safe answers for cross-examination are “Yes,” “No,” and “I don’t recall.” The prosecutor will probably revisit anything that needs clarification, allowing for explanation if a yes or no answer was inadequate. Treat the defense lawyer like you treat the prosecutor. Nothing can destroy credibility to a jury quicker than being rude to a defense attorney from the stand. Also, don’t let the defense lawyer control the pace of questioning. This is something you can control by pausing before you answer.
It is possible to achieve the command presence you’re used to on the street in the courtroom. Public speaking confidence develops with practice, so look for opportunities. Briefings are a great start. Prepare short training lessons on a specific topic and present them at briefing, inviting your teammates to fire questions at you in a form of cross-examination. Another way to develop public speaking skills is to deliver presentations at community meetings, local government proceedings or high school classes.
But you don’t have to be a public speaking pro to be effective in court. The more grounded you are in your knowledge of the report and applicable laws and procedures, the more control you’ll have on the stand. So, are you ready for the test?
About the author
Eric Starnes is a criminal prosecutor in Texas. He retired as a lieutenant from the Euless Police Department in January 2017, having served as a patrolman, canine handler, SWAT team member, internal affairs investigator and sergeant over community services; he spent his last six years as investigations commander. Eric holds a Bachelor of Science in Criminal Justice, a Master of Public Administration, a graduate certificate in Police Management and a Juris Doctor. He is a previous employee of Lexipol, an adjunct professor at Tarrant County College and Tarleton State University, and a police academy instructor.