Life isn’t easy for a cop testifying in the courtroom. This is especially true when being cross-examined by an experienced defense attorney whose focused purpose is to discredit you — even if you’re telling the truth. In fact, the Supreme Court sanctions attempts by the defense to undermine the credibility of even truthful witnesses, saying:
“If [defense counsel] can confuse a witness, even a truthful one, or make him appear unsure or indecisive, that will be his normal course.”
Why would our highest court encourage defense attorneys to subvert the truth? The Court explained:
“Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.”
Here are five ‘golden’ rules for winning testimony. Remember that “winning” testimony is one that the jury believes. That’s it. Don’t try to help the prosecutor get a conviction. That’s their job. Your job is to tell the truth and ensure the jury believes you. If you try and help the prosecutor, you appear biased — an appearance that makes the jury distrust you.
These rules work on direct examination by the prosecutor and cross examination by the defense attorney — but they’re harder to stick to on cross.
1. Be Sincere
An officer should be modest, respectful, and sincerely interested in the accuracy and truth of her testimony, regardless of who is asking the questions. Communicate to the jury that you understand the trial and your testimony is important to the community and everyone involved.
You can’t fake sincerity — it must come from a genuine desire. The defense attorney has a job to do. So do you. Stay focused on your job and don’t take it personally when the defense attorney tries to do his.
2. Be Brief
Remember the adage that “less is more.” Limit your testimony to concisely answer the questions posed and you’re less likely to get flustered, confused, or caught in inconsistencies. Most witnesses get impeached when they volunteer information, argue with counsel, or make spontaneous, unresponsive remarks.
Any information you volunteer provides more material for the defense to cross-examine you. Don’t explain why you know something unless you’re asked. If it’s important, the prosecutor can ask you to explain on re-direct examination.
3. Be Clear
Cops understand vigilance. When testifying, you must be vigilant to avoid errors, inconsistencies, and confusion. Jurors often equate their confusion with reasonable doubt. Don’t assist the defense in creating such doubt.
Avoid police jargon. On the stand, you can sound pompous, officious or ridiculous.
Here’s an exercise: Make up some flashcards. On one side, write a phrase or sentence the way you now talk on the stand. On the other side, write the same phrase in plain English. Have one of your kids, a spouse, or friend work with you to translate your cop jargon. For example:
- He indicated = He said
- I have been employed by = I’ve worked for
- I exited the patrol vehicle = I got out of the car
- I observed = I saw
- I ascertained the location of the residence = I found the house
- I proceeded to the vicinity of = I went to
- I apprehended the perpetrator = I arrested the man
- I observed the subject fleeing on foot from the location = I saw him running away
4. Be Fair
The prosecutor may unwittingly try to draw you into an advocate’s role during pretrial preparation. Defense counsel will likely try to portray you as an advocate during cross. Avoid both. You are and should portray yourself as, an impartial, conscientious public servant whose job is fact-finding. Be respectful, courteous, forthright, and fair on the stand and jurors will trust you and your testimony.
5. Use Self-Restraint
Remember the police code of ethics where you promised “to develop self-restraint?” It’s as important in court as on the street. A testifying officer must have the discipline to remain poised and calm in the face of badgering, innuendoes and direct personal attacks. An officer who loses control on the stand loses credibility.
Remember the Rules
This Golden Rule of Christianity – Do unto others as you would have them do unto you – is embraced in slightly varied expressions by most of the major religions. It’s simple, but it can be difficult when dealing with people who don’t subscribe to it – people who instead believe, “Do it to them before they can do it to you.”
The above rules will help you overcome instances in the courtroom when your questioner seems to abide by the latter credo.
Always keep in mind that police are given great power and authority, and as a consequence, jurors expect more of them than they do witnesses. Follow these rules — even when it’s hard — and you’ll meet their expectations.
