Law enforcement understands how a winning attitude is critical to a winning performance in street confrontations. Unfortunately, attorneys overlook this when it comes to preparing officers to “win” in court.
I’ve seen way too many books and training by attorneys titled “courtroom survival” or “how to survive cross-examination.”
That’s wrong-headed thinking. That’s already giving power over to the opposing counsel. The goal in court – just like in the street – is to win, not merely survive.
Win What?
While a winning attitude is key to a winning performance, it’s also important to ask, “Win what?”
When I ask this question in my courtroom testimony training, the most common answer is, “Get the conviction!”
In the nearly 30 years I’ve spent working with law enforcement that’s what I’ve seen them do in court – try to help the prosecutor get the conviction.
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). If a police officer appears biased, do you think that helps or hurts the prosecution’s case and the likelihood of getting a conviction? When testifying officers appear biased they’re scoring goals for the other team.
Winning, Defined
The win for an officer in court – whether in a criminal prosecution or civil litigation – is that at the end of testimony, the jury or judge must believe you.
That’s it.
But winning the credibility confrontation can be difficult when an experienced defense attorney’s white-hot, focused purpose is to discredit you. That’s because they know if they can raise doubt about your credibility – because of who you are and what you represent – it may raise a doubt about the entire case.
How Jurors Determine Credibility
Most experts agree that communication is made up of what we say, how we say it, and our body language.
Oft-cited research breaks down how important most people find those three means of communication:
- What we say: The actual content of our speech – 7 percent
- How we say it: Tone, inflection, modulation, pitch, amplification – 38 percent
- Non-verbal body language: What we do as we’re speaking – 55 percent
One reason witnesses testify in person – rather than just have the jury read a transcript – is so the jury can see the last two components of communication, especially when you’re confronted by the defense. Most pattern jury instructions tell the jurors they should consider the witness’ manner, behavior, and attitude on the stand in deciding the witness’ credibility.
Reasonable minds can argue about the exact percentages above but cops understand the concept. They often rely more on how people respond to their questions and their nonverbal behavior. For discussion purposes, I’ll use the percentages above.
Most Witness Preparation Misses the Boat
This breakdown of communication has amazing implications for whether jurors or judges believe you and whether you’re prepared to win the credibility confrontation.
If you get a pretrial meeting with the prosecutor, you’re probably going to spend your time on what you’re going to say. Get it perfect and you’re seven percent on your way to being believed. But this explains how an officer can testify to the objective truth on the stand and still get discredited by an experienced defense attorney.
There’s also good news in this breakdown. It explains why an officer can make honest mistakes on the seven percent and still be found credible by the jury. You don’t have to get the what perfect for the jury to believe and trust you.
So, how do you make the last two components of your communication credible?
All About Attitude
Your attitude determines how you testify and your body language. If you’re defensive, that’s how you’ll come across – regardless of what you say. What kinds of people are defensive? Guilty people. And that’s what the jury will see. The same will happen if you come across hostile, indignant, or angry.
Check any losing attitude at the courtroom door.
What Makes a Witness Credible?
There are three main considerations that make a witness credible to a jury:
- Consistency: Jurors look to see if what you say matches how you say it and how you behave when you say nothing at all.
- Respectfulness: The witness shows respect to the process and others – the judge, both attorneys, the jurors. She doesn’t make sarcastic comments or expressions. If in the audience, she listens respectfully to other witnesses.
- Not Arrogant: Arrogance suggests you don’t listen to or value others’ ideas and opinions and you put yourself above them. Jurors find credible witnesses who treat them as equal, intelligent adults.
Before You Go to Court
Ask and answer the most important question every time. It will help you get the winning attitude in place. Then think about how to be credible. A calm, sincere, respectful, open, forthright attitude – no matter who’s asking the questions – will have you winning confrontations questions credibility.
NEXT: How to testify like a professional
This article, originally published 09/17/2014, has been updated.
