Appendix A: Testifying in Court

Introduction

What makes an officer an effective witness in court? That was the question we asked several respected judges, prosecutors, defense attorneys, and officers. Here is what they said:

Read police reports: Officers must know what they wrote in their reports.

Prosecutor: An officer can't be effective unless he has a command of the facts in his report.

Don't memorize everything: Officers should not try to memorize information they are not apt to retain; e.g., VIN numbers. They will be allowed to review their reports in court if necessary.

Officer: You don't want to memorize things like license plate numbers and quotes from the victim or defendant. That sounds rehearsed, phony.

Read transcripts: If officers gave testimony in the case previously (e.g., at a preliminary hearing or suppression hearing), prosecutors should give them a copy of the transcript so they can review it. This will help refresh their memory, plus they can alert prosecutors that something they said was incorrect or that it might be misinterpreted.

Just the facts: Officers should convey the sense that their only interest is to present facts.

Judge: Just state the facts and let the chips fall where they may.

Judge: If an officer sticks to the truth, a defense attorney can cross-examine him until the building falls down—he won't accomplish anything.

Don't volunteer information: An attempt to volunteer information may be interpreted by the jury as an attempt to "help" the prosecution.

Defense attorney: An effective police witness just answers the questions then gets out. He doesn't get into long explanations.

Judge: Answer the question, then stop. I truly feel that if an officer has three words to say, it's better to say two than four.

Don't be evasive: Officers will not appear impartial if they attempt to avoid answering an unambiguous question. Judges and jurors may see this as an indication that the officer has an interest in the outcome of a case, and that the truth would help the defense.

Defense attorney: If I'm trying to get an answer out of an officer and he won't give me one, he's doing me a favor.

Defense attorney: When an officer is evasive, he looks defensive.

Truthfulness: Impartiality requires complete truthfulness.

Prosecutor: If an officer fudges on something he thinks will hurt the case, it will probably come out from other witnesses. Then the officer's credibility is shot.

Officer: Don't worry about the verdict. Your main concern should be your credibility.

Treat the DA and defense attorney alike: Officers may demonstrate impartiality by treating the defense attorney and prosecutor in the same manner.

Officer: Officers will often appear friendly and relaxed when they're being questioned by the DA, but then the cross-examination starts and they immediately become defensive. There may be a change in the tone of voice. Don't do this. Speak to the defense attorney with the same demeanor and attitude as the DA.

Don't demonstrate anger: Some defense attorneys try to get officers to become angry on the witness stand because it tends to make them look biased. But when officers are able to resist the impulse—no matter how obnoxious the attorney—their image as a professional will be strengthened. Poise and self-control are qualities that judges and jurors like to see in officers.

Avoid sarcasm: Don't become sarcastic or irritable.

Judge: Where officers get into trouble is when they start answering a defense attorney by saying something like, "Of course I did," or "As I already told you ..."

"I don't know": An officer who does not know the answer to a question should just say so. There is nothing wrong with answering, "I don't know," or "I can't remember."

Cross examination about police reports: There may be inconsistencies between an officer's testimony in court and what he wrote in his police report. Or the officer might testify about something that was not included in his report. Defense attorneys commonly point out these things to the jury in an attempt to create doubt about the officer's truthfulness. When this happens, don't become defensive. If there was an error, simply acknowledge it.

Defense attorney: If something was omitted which turned out to be important, be humble. "I screwed up." But as a defense attorney I'd rather have the officer try to cover it up.

Summarizing previous testimony: Officers must be alert when a defense attorney asks a question in which he summarizes their previous testimony; e.g., "Earlier you testified that…" The danger is that the attorney may deliberately or inadvertently misstate the officer's testimony. If so, call it to his (and the jury's) attention.

Did you talk to the DA? Some defense attorneys routinely ask officers if they talked to prosecutors or other officers about the case. They know the answer is yes, so why do they ask? It's a tactic designed to suggest that the officer was coached by the DA, or that he talked with other officers to "get their stories straight." When officers are asked such a question and the answer is yes, they should simply say so.[1]

Officer: Police jargon is fine for TV and movies. But when you want to communicate with judges and jurors, it's terrible.

Other Suggestions

Don't worry about defense attorneys: Don't worry if you can't figure out what a defense attorney is trying to accomplish on cross-examination. Oftentimes, he doesn't know either.

Nervousness: It's okay to be somewhat nervous. In fact, it may give you a competitive edge as it gets the adrenaline going.

Sense of humor: Trials are serious business. But there are times when it is appropriate to lighten up.