While officers are used to testifying on cross-examination at various phases of criminal trials, the stakes are especially high in today’s highly charged social justice reform environment. Nationwide protests have sparked a call for police reform that has particular significance when testifying under oath on cross-examination. Cross-examination provokes anxiety in the best of times. This is the worst of times. According to a recent Gallup poll, Americans’ confidence in the police is at its lowest level in nearly three decades.
As a law enforcement witness, your job is to be credible. Judges and jurors believe witnesses they trust. Right now, less than 50 percent of Americans trust you. When you are called to testify your first hurdle will be to fill that gap of public trust.
Social justice protests have called for change and reform. Officers must, therefore, reevaluate and change their communication skills to be effective today. As a witness representing law enforcement, you can be an important positive influence on public opinion if you testify credibly.
BUILD TRUST ON DIRECT TO SURVIVE CROSS
It is stating the obvious to say direct examination precedes cross-examination. If you really understand what this means, you will understand the secret of surviving cross-examination.
Most articles about cross-examination give you tips on answering questions without ever mentioning direct examination. But if you successfully build trust by giving a compelling narrative of the facts on direct, you will give the defense few, if any, avenues of attack on cross-examination. You will leave the witness stand as a successful, credible, believable witness.
Direct is where the prosecution wins cases. Direct is where, as a witness, you give evidence in support of the case. Too often law enforcement witnesses fail to understand the importance of their direct testimony and worry more about preparing for cross-examination. The best preparation for cross-examination is to prepare complete and compelling answers to the questions you will be asked on direct examination. You need to paint a verbal picture of your case on direct examination for the judge and jury.
FIVE MOST COMMON METHODS OF ATTACK
The five most common ways to attack police officers on cross-examination are:
- Perception
- Memory
- Bias
- Acts of untruthfulness [1]
- Prior inconsistent statements. [2]
Attacks on an officer’s perception, memory and bias are common law impeachment modes. Acts of untruthfulness and inconsistent statements are addressed by the Federal Rules of Evidence. You need to be aware of these avenues commonly used by the defense to discredit you. Discuss them with the prosecutor so that you fully understand them. Consider which methods the defense is most likely to use against you in your particular case.
For example, if you know the lighting conditions on the scene will be an issue in your identification of the defendant in your case, you can anticipate the defense will use the perception method of impeachment to challenge your identification. Expecting this method of attack, you can eliminate this avenue by fully addressing the lighting on direct examination where the prosecutor will ask you open questions such as, “Describe the lighting conditions on the scene that night?” These open questions will allow you to give not only facts about the lighting but to explain how you saw what you saw and were able to correctly identify the defendant.
All five of these common methods of impeachment can be anticipated and most successfully addressed by complete and compelling testimony on direct examination.
NEW WAY TO PREPARE
Reform calls for change and changing the way you prepare for cross-examination will lead to better overall testimony.
The “new” way to prepare for cross-examination is to shift the focus from how to answer the defense questions on cross-examination to how to give such a complete compelling direct examination that any potential attacks by the defense will be nullified.
Prepare by honestly evaluating the weaknesses in your report. Consider which of the five most common methods of attack the defense is likely to use against you. Anticipate questions about de-escalation techniques and the social reform environment and where necessary give thoughtful explanations of your actions on direct examination where you are not under attack by the defense attorney. Build trust by being better prepared.
Reading your report and telling the truth is insufficient to meet the test of credibility in today’s era of social justice reform. Know your facts, the applicable laws and procedures, so you will be seen as competent and credible.
Law enforcement is on the defensive in many areas today. Effective and credible courtroom testimony is one way to change public opinion and rebuild trust while on the offensive. Take control of the narrative on direct examination and the questions you face on cross-examination will not put you on the defensive. Acknowledging errors or mistakes made in reports will show you are accountable and taking responsibility for your actions.
ATTITUDE AND DEMEANOR
Attitude and demeanor are critical factors. Judges and jurors place significant weight on your attitude and demeanor when evaluating your credibility.
The key point to remember is that your attitude and demeanor should not change when the defense starts asking questions. This is difficult because the form of the questions is totally different.
On cross-examination, you will be asked predominantly leading questions. These types of questions call for only yes or no answers. After a much more conversational direct examination, you are now giving much shorter answers and talking less. The entire tone of cross-examination feels and sounds different.
However, the key to a successful attitude and demeanor on cross-examination is not in what you say, but how you say it. Keep your volume, tone of voice and the pace of your answers the same as it was on direct examination. Body language is important as well. Do not change your posture, hand gestures, facial expressions or eye contact. There should be no need to be defensive because you sealed the deal in your compelling narrative given on direct examination.
It is very important for your demeanor to be assured and confident, not arrogant and defensive in today’s social reform environment. You should always be consistent, genuine and respectful when answering questions from either side. Your focus needs to include representing your agency and your profession in a positive manner.
CONCLUSION
Seismic shifts in public opinion and nationwide protests have caused an urgency in the need to rebuild public trust in law enforcement. News events and the surrounding discussions have a profound effect on trust. Often all officers are painted with a broad brush, rather than looked at as individuals behind the badge. When you are called to testify, you have a unique opportunity to improve the public’s opinion of law enforcement. How you respond today to questions on cross-examination will have effects far beyond one hearing or trial. Your job is to protect and serve, which makes you part guardian and part warrior, depending on the situation facing you. When testifying you should always see your job as a guardian of our system of justice.
References
1. Federal Rules of Evidence 608.
2. Federal Rules of Evidence 613 and 801(d)(1)(A).
Next: Advice from a defense attorney about effective courtroom testimony
See the defense attorney as the enemy and you'll lose credibility
