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Elements of an Effective Testimony

Introduction

The duty of testimony is one of the most important functions a law enforcement officer will perform in their career. It is a major factor in the results of a culmination of days, weeks, months, and in some cases even years of investigative work. Laws and policy have been developed to ensure that testimony given is accurate and true. A mistake on the witness stand can negate countless man hours of work and allow an injustice of the law to be successful.

The duty of testifying is of the utmost importance for a law enforcement officer. It is as important as the duty to protect life and property and to defend the weak and innocent. Few of the other duties performed by officers carry the weight of justice so heavily upon its back. The testimony of an officer can be the difference between justice being served and an injustice being perpetrated upon society. It also differs in the many factors outside of the courtroom that have influence upon the outcome of the testimony. Testimony can be affected by not only the work standards of the officer and how he handles himself on duty, but it can be affected by things within the officer’s personal life that he never thinks will see the light of the public eye. No other duty performed by officers will be scrutinized and noted in various media like testimony will. The honest testimony of an officer can secure a conviction, and a dishonest one has the ability to ruin an officer’s reputation and follow him throughout his career and personal life. There are several areas an individual officer needs to prepare for their testimony to be as effective as possible. It is important that an officer be trained properly in the techniques used during testimony by the defense, as well as the prosecution. Above all else, it is imperative that an officer always, no matter the impact on the case, tell the truth. Anything less than the truth during an officer’s testimony has the ability to destroy the case, the standing of the department within the community, and the officer’s reputation and career.

Looking the Part

Testimony in the courtroom begins before you even open your mouth to swear an oath to tell the truth, the whole truth, and nothing but the truth. You begin testifying the very moment you enter into the courtroom. You only get one chance at a first impression. This is just as true within the courtroom as it is in life. As wrong and as unfair as it may seem, people are going to form opinions about you and your quality of work based on your appearance and attitude. The judge, jury, prosecution, and defense are all going to place weight on your appearance. Police officers should be viewed as being part of a profession and above reproach. That is a hard part to play if you show up to court disheveled. The attentions to detail you give to your uniform, grooming, and attitude will all be reflected in the way the jury receives your testimony. You should always make sure that you arrive to court in a clean, pressed, and complete uniform. The cleanliness of you and your uniform will speak volumes to the people within the courtroom. You are a professional, and as such you should look like one during the performance of your duties and your duties include testifying in court. Your hair should be groomed and you should be freshly shaved. It will be hard for the jury to place value upon your testimony if you have a five-o-clock shadow and greasy unkempt hair. They will automatically compare your lack of concern to your appearance to your possible lack of concern when it comes to your investigation of the case. If you are a detective, then the same applies to your appearance and to your suit and tie. The importance of appearance does not end just with the courtroom.

During breaks and recesses, it is important that a professional appearance is maintained. You should look and behave in the hallways with the same pride and professionalism as you would in the witness box. Along with a professional appearance comes a professional attitude. It is important that an air of confidence and professionalism is maintained throughout all the courtroom proceedings. Just as with appearance, people will compare your attitude and mannerisms with the quality of your testimony. During your testimony and during recesses it is important to avoid using profanity and most slang, unless you are directly quoting a witness (Garland, 2011). Police officers are held to a higher standard that the rest of society and being aware of this is more important in the witness stand than anywhere else. It is of the utmost importance that an officer testifying be clear in his speech and be able to be understood clearly by the audience, judge, and jury. It is important that language be used that can be understood by the lay person. Avoid using language and jargon that only a law enforcement professional would understand (Garland, 2011). When it comes to the jury’s opinions about you, you are only as good as you appear to be.

Nothing But the Truth

The most important, vital attribute of an effective testimony is to tell the truth. Although this may seem like an easy enough concept, many officers have ruined cases, their careers, and their lives due to being dishonest on the stand. It is imperative that honesty become a woven fabric of an officer’s personality from his first day on the job. It should be ingrained by supervisors and administration that nothing less than one hundred percent honesty will be accepted from officers. Telling even a small variation of the truth can lead to a path of dishonesty and corruption that will follow an officer his entire career and life. One of the main techniques of a defense attorney is to impeach the State’s witnesses. This can be accomplished by baiting the officer into altering his accounts of the case to differ from the report or other officer’s testimony. If you fall into the impeachment trap, you lose the case, your reputation, and your dignity.

The ramifications of lying under oath have the potential to end your career. Most states and agencies keep what is known as a Brady list. The Brady list developed from a Supreme Court decision that all exculpatory evidence must be turned over to the defense (Brady v. Maryland, 1963). This includes information on officers know to have committed perjury. Many officers are complete unaware of the impact the decision of Brady v. Maryland has on their livelihoods and the implications it has on testimony (1963). The few officers who have heard of a Brady list usually assume it is for federal court proceedings only. This is completely off base and more and more state and local prosecutors are maintaining a Brady list and defense attorneys are demanding the content of these lists during their preparation for trial. An officer who cannot be trusted to testify is the same as an officer who cannot shoot or patrol, useless. Once on the Brady list, officers will be marked for their entire career as dishonest or a liar and background investigators for new hires are looking for this information also. So if you think you can lie on the stand in one jurisdiction and jump to another, you are sadly mistaken. The importance of Brady is not just about courtroom lying.

A later case by the Supreme Court went further to include dishonest acts documented at work also, such as within an internal investigation file or a disciplinary file (McDonlad & Means, 2012). This Supreme Court case commonly referred to a Giglio is a case that decided that all forms of exculpatory evidence includes instances of impeachment in other areas of the officer’s life, such as the above mentioned administrative actions (Giglio v. United States, 1972). Once an officer is perceived to be dishonest, this information spreads like wildfire and in most cases, the officer is forced to resign and begin in an entirely new field other than law enforcement. Is telling a lie worth your reputation and career? Even though there may be evidence that we do not want the defense to have, under Brady and Giglio, we are in violation of the defendant’s constitutional rights if we do not turn over evidence, even evidence that our lead officer may have lied in the past (McDonlad & Means, 2012). It is easy to see that you cannot go wrong by telling the truth. If you work your case the right way the need to lie never becomes an issue.

Calm Within the Storm

A large part of the impact of your testimony with the jury will have to do with the witness’ attitude. Above all other considerations with attitude, the officer must always maintain their composure and not allow the types of questions and statements allow them to become personally involved in the testimony. With the sole purpose of the defense to make you appear to be a liar, it is easy to take things personal and to become agitated or angry during testimony. You as a professional must not allow this to happen. No matter what is being said to or about you, you must keep a professional and amicable disposition while on the stand testifying. In the end it makes you look like a reasonable, honest officer and it makes the defense look like they are trying to cover up their client’s guilt. Defense attorneys have numerous techniques to try to make officers look dishonest or to try to cast doubt in the jury’s mind about the professionalism and work quality of the investigation. By making sure you stay current with training and by talking to seasoned offices and prosecutors, you can avoid making common mistakes and be baiting into testifying to something that did not happen or into testifying to something that you did not intend to testify to. One of the central strategies by defense attorneys is to try to make the officer confused about the facts of the case. Make sure you fully understand the question before you answer it (Garland, 2011). If you do not understand the question, then ask that they repeat it. Another technique used by the defense is to try and force the officer to only use “yes” or “no” answers. This is done in an attempt by the defense to make the facts appear to be something they are not or to make the investigative team appear incompetent. In this situation, pause and ask permission to speak to the judge. When permission is granted, explain that you are more than happy to answer the question, but it cannot be fully answered with just a “yes” or “no”. In most cases, the judge will allow a short explanation to the question. Most prosecutors will object to this type of questioning.

Conclusion

For most officers, testimony will be confined to smaller traffic or probate courts. Even in these smaller courts, it is imperative that the above elements are observed and utilized, if for nothing else than preparation for that time in your career when you will be subpoenaed for larger court cases handled by Superior or Appellate Courts. The fact that the duty of testifying is, in many instances, infrequent makes it extremely important that officers take the time to stay abreast of case law, effective testimony techniques, and the court staff in their jurisdiction. Some officers may never see the inside of a Superior Court courtroom, but it will be rewarding to be prepared in the event that it becomes a reality.

References

Brady v. Maryland, 373 U.S. (1963).

Giglio v. United States, 420 U.S. (1972).

Bourg, B. (2010, November). Seven Steps to Effective Report Writing. (Y. Salcedo, Ed.) Law and Order, 58(11), pp. 66-69.

Garland, N. M. (2011). Criminal Evidence (6th ed.). New York, NY: McGraw Hill.

McDonlad, P., & Means, R. (2012, April). New Supereme Court Decison Illustrates a Big, Old Problem. (J. Gavagin, Ed.) Law and Order, 60(4), pp. 12-13.

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