Brian Willis is a 25-year police veteran, 33-year law enforcement trainer and CEO of Winning Mind Training. I previously wrote about a conversation he had at the 2024 ILEETA Conference in which he discussed “hard” skills versus “soft” skills. Brian said that while tactical training is generally considered “hard” skills, relationships are the “hardest.”
I’ve been in court with cops countless times as a former state and federal prosecutor. And I’ve trained local, state and federal cops on courtroom testimony for over 25 years. But Brian’s remark about relationships got me thinking about cops testifying in a new way.
I’ve written before about the importance of a winning attitude to a winning performance in court. It’s equally important to know what the win is. That will determine what kind of relationships officers must build when testifying, and with whom.
Win what?
When I ask officers what’s the win for them testifying in a criminal prosecution, I most often hear, “Get the conviction.” Officers want to “help the prosecution,” and they don’t want to “hurt the case” (reduce the likelihood of getting a conviction).
“If that’s what you’re trying to do on the stand,” I ask, “Could it affect how you testify?” Light bulbs go off, heads nod affirmatively, and officers volunteer, “We might appear biased.”
“Right!” I reply. “And, if you appear biased, you’re losing credibility.”
Credibility is the win for officers. When the testifying is done, the jury must believe them. Let’s look at the relationship building that’s critical to a witness being found credible.
First, the jury
Studies in human communication show that people decide whether they believe someone based on what the person says, how they say it (tone, volume, pitch) and their nonverbal body language. Those studies also indicate that the latter two count for way more than what you say on the stand.
Jury research on what makes a witness credible reveals:
- Consistency — jurors look to see if what the witness says matches how they say it and how they behave when they say nothing at all.
- When the witness shows respect for the process and others — the Judge, both attorneys, the jurors.
- The witness treats jurors as their equal — as intelligent adults who can understand.
- The witness is not arrogant. Arrogance suggests the witness doesn’t listen to or value others’ ideas and opinions and puts themselves above others.
The opposite of arrogance is humility. We train officers in “command presence,” which is important in street encounters, but it can backfire in the courtroom. The only thing you can control in the courtroom is you — your attitude toward others in court and how you express that, verbally or nonverbally, consciously or unconsciously.
You need to build a relationship with the jurors of mutual respect and trust. They must feel they can rely on you as an impartial investigator and reporter of the facts — without favor, bias or animosity, which leads me to the next relationship you must build.
Second, the defense attorney
“A relationship with the defense attorney!” you exclaim. Yes. The same kind you have with the prosecutor — a professional one. I know what many cops think of most defense attorneys. In my training, I do word associations. I say a word or words, and the cops in the training say the first thing that comes to their minds. When I say “defense attorney,” the shout backs include:
“Shark.”
“Slimeball.”
“A—hole.”
“Dirt bag.”
“Slease.”
One time a cop shouted from the back of the room, “SATAN!” I responded, “They don’t have that kind of power — unless you give it to them.”
Here’s some context that might help you develop a professional relationship with defense attorneys. Most of you have heard the saying, “Defense attorneys try to put everyone on trial but the defendant.” That’s because they want to distract the jury from who’s really on trial and the evidence against them.
If you are feeling defensive, you will act defensive. “What kind of people act defensive?” I ask cops. “Guilty people!” they answer. Right. And that’s what the jury sees.
Ralph Waldo Emerson said, “What you are thunders so loud I cannot hear what you say to the contrary.”
That goes back to jurors deciding whether to believe you not just based on what you say, but how you say it and your nonverbal body language. That’s why you can be testifying truthfully and still be disbelieved — if you allow the defense attorney to make you feel defensive.
When I ask cops how defense attorneys make them feel defensive, they say because the defense attorneys attack them. I respond, “Yeah, so what?” “Well,” cops say, “it’s hard not to take that personally.” That’s what defense attorneys count on.
It’s not personal with the defense attorneys. They’re just doing their job. The U.S. Supreme Court stated in U.S. v. Wade (1967), that defense attorneys have no obligation to the truth. Their role in our justice system is to defend their client — guilty or not.
The Court further said, “If [defense counsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.”
Why do we sanction such attacks on the truth? Here’s what the Court said: “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.”
You may find the defense counsel’s duty distasteful. But without it none of us would enjoy a presumption of innocence.
When the defense attorney attacks your credibility, they’re doing their job. They can’t make you defensive unless you let them. Don’t give them that power. Maintain a professional relationship. If your defense counsel does meet all the negative descriptions above, your professionalism will be even more notable — and credible.
