TESTIFYING IN COURT



Reprinted From The Evidence Log an IAPE Publication for Members
Volume 1993, Number 3, Page 9




 
by A. Mark Hutchins

What makes a property/evidence officer an effective witness in court? We contacted evidence officers, prosecutors, defense attorneys and judges in search of a uniform answer. There seems to be considerable agreement on what helps, and hurts, witness effectiveness. The main answer universally acknowledged was professionalism. Judges and jurors expect professional law enforcement personnel to demonstrate qualities that make it easy to believe in the person testifying. In each instance we found that qualities and traits necessary to be an effective witness could be developed with practice. Although individual personalities sometimes make a witness more likable, the overall impact of an evidence officer's testimony seems to evolve around the continued commitment to work on courtroom skills. Development of courtroom skills is essential to being an effective witness.

BE PREPARED

Pre-trial and pre-hearing preparation is basic to providing effective testimony. As one inspector put it, "I think many of the problems with testimony are brought on by not being prepared."

The amount of preparation depends on the seriousness of the case and the nature and scope of the testimony that will be given. For example, one evidence officer reviews the reports, chain of custody, supplemental reports and all property records at least one week before trial. After reviewing everything, he then tries to figure out how a defense attorney will try to attack his testimony. "I try to plan how to respond to questions I think will be asked. It's like a chess game: What move is the defense attorney going to make?"

In most cases, such extensive preparation is impractical and unnecessary. There are certain things that should al ways be done before taking the witness stand, regardless of the importance or complexity of any case.

Read your report and documentation
No one can be an effective witness unless they have command of the facts they are giving testimony on. This does not mean memorizing every date on the chain of custody. Too many facts from memory sound rehearsed and phony. "If somebody asks me to list all the officers who signed the evidence in or out, I want to look at my paperwork so the jury knows they're getting exactly what happened, not my best recollection," said an officer. "When I review my sign-out sheets or other documentation I just try to get a feel for the case. I want to know how things progressed. I memorize some main details, like when I took the item into custody and when it may have been sent to the lab for analysis."

A defense attorney told us the most effective witness he had ever cross-examined was a property officer who took the stand without even scanning the property report. "He came in late, so the DA didn't have time to talk to him. He kept confusing the facts in my case with the facts in similar cases he'd handled. It was not pretty."

Read transcripts
If you have given any testimony in the case previously (such as preliminary hearing or motions to suppress evidence), obtain a copy of the transcript from the DA and read it over carefully. This will help refresh your memory about the facts of the case. Also, you may notice something you said that was incorrect. If so, tell the D A so the jury will hear about the mistake from the prosecution, not the defense.

Talk to the DA
In every case, a pre-trial or pre-hearing meeting with the DA is absolutely essential. Usually it will only take a few minutes. In a complicated case where, for example if chain of custody may be questioned on a critical piece of evidence, it may take hours.

Regardless, there must be some direct communication between the D A and the evidence officer for the purpose of reviewing the facts of the case, discussing what subjects will be covered on direct and cross-examination, and trying to anticipate any problems that might come up.

Visit the Scene
It may not always be necessary to visit the scene of the crime in every case. However, if part of your duties involve crime scene analysis or collection of the evidence at the scene, it may be a very good idea. You may be asked to draw a diagram in court or be expected to answer questions concerning locations where evidence was collected.

IMPARTIALITY

Significantly greater weight is given to testimony by a judge or jury if the evidence officer demonstrates an impartial, unbiased attitude. At the same time, credibility suffers when it appears he or she has a personal interest in the outcome of the case. This is not to imply that an officer should look uninterested, bored, or passive. Simply stated, an officer should demonstrate their only interest is in presenting the facts. "Don't go into the courtroom carrying a torch or a spear. Just tell the truth," suggested a judge. "If an officer sticks to the truth, a defense attorney can cross-examine him until the end of time and won't accomplish anything."

An effective police witness will answer each question truthfully, even if it might hurt the prosecution's case. According to one DA, "If an officer fudges on something he thinks will hurt the case, it will probably come out from other witnesses. The officer's credibility is shot."

Testify as if you are an expert witness. Don't worry about the verdict. One inspector underscored the theme, "A defense attorney will sometimes ask a hypothetical question which could be answered either A or B. Answer A helps the prosecution, B helps the defense. Some officers will only answer A, even if A and B are possible. This causes a loss of credibility. "

Treat the DA and defense attorney alike
Impartiality can be demonstrated by dealing with the defense attorney in the same manner as the D A. One DA observed that police witnesses often appear friendly and relaxed when question by the DA, but when the cross-examination begins they often become defense. "There may be a change in the tone of voice. Sometimes they move around in the chair, sort of squirming; this is body language the jury picks up on. Don't do this. Speak to the defense attorney with the same demeanor and attitude as the DA." Another instance cited was saying "Yes, sir" to the DA, but replying "That is correct counselor" to the defense. If the prosecutor misstates something, the officer should correct him just as he would correct the Defense Attorney.

Do not be evasive
Credibility may also be hurt by attempts to avoid answering an unambiguous question. Judges and jurors usually see this as an indication the officer has an interest in the outcome of the case, and that the answer would help the defense. One defense attorney commented "When an evidence tech is evasive, he looks defensive. I will keep asking the question until I get a direct answer. I've asked questions four times in a row. Eventually I get an answer, but it makes a bad impression when an officer or tech won't answer an ambiguous question."

Do not volunteer information
A voiding answering a question may hurt credibility, but an attempt to volunteer information which was not requested may look like the officer is trying to "help" the prosecution. Attempts to volunteer information often indicates the evidence officer is not an impartial witness. Just answer the question asked. Providing long explanations give the defense more ammunition. Giving facts limits challenges to credibility.

Request to explain answers
While an evidence officer should not volunteer information that was not requested, it is quite proper to request to explain an answer if an explanation is necessary to prevent misunderstanding. The best way to handle a situation is to request permission to explain the answer. For example: "The answer is yes, but with the courts permission I would like to explain this answer to prevent misunderstanding." Most judges will permit an explanation if approached in this manner. It would also be appropriate to simply answer yes, then wait for the DA to request an explanation.

Don't get angry
The most important, and most difficult, thing any police witness can do to become more effective is to refuse to demonstrate anger toward the defense attorney. An officer's image as an unbiased, impartial witness will be significantly damaged if anger is shown toward the defense attorney. It is also difficult to think clearly when angry. Witnesses lose effectiveness when angry.

However, if the officer successfully resists the impulse to demonstrate anger, the officer's image as a professional will be strengthened, no matter how frustrated the defense attorney gets. Poise and self-control are qualities which judges and jurors like to see in a witness.

Keep in mind that some defense attorneys try to get evidence officers angry on the witness stand. "If a defense attorney gets argumentative, keep cool," according to one judge. "There's no point in having two fools in the courtroom."

Don't get sarcastic or irritable
Sometimes an inadvertent response to an obnoxious attorney is to become sarcastic or irritable. In one case the defense attorney asked "Did the other evidence officer ever move that piece of evidence?" The witness replied "Well, I don't know. You'd better ask him." This type of question and answer went on for considerable time. Later, after the case was over, the Judge was asked why he didn't stop it. The judge replied "If an officer gets smart, I let the attorney at him. But if the officer keeps his dignity, I tell the attorney to be civil or there will be hell to pay."

OTHER PITFALLS

Tactics can include ethically acceptable traps.
Sometimes the evidence officer's credibility can be damaged by confusion or other tactics used by the defense. It is the defense attorney's job to try to damage the credibility of every witness. However, sometimes the effectiveness of testimony is reduced for reasons which have nothing to do with truth or accuracy.

Confusing questions
Attorneys frequently ask questions that are confusing. If this happens, don't hesitate to respond, "I don't understand that question. " Under no circumstances should the meaning of a question be guessed at. Often officers hesitate to say they do not understand the question fearing embarrassment or looking foolish. If the officer didn't understand the question, most likely neither did the jury, so if the attorney tries to belittle the officer it will usually backfire.

Repeated questions
An attorney may try to cause an officer to give an inconsistent answer by asking the same question several times. Essentially it is the same question with a little change in language. They're trying to get a 'yes' answer to a question which was previously answered 'no.' When this happens, and if the DA doesn't object, let them know you are paying attention. (Say something like, 'I think you asked that question earlier.')

Repeated Answers
An attorney may ask a series of questions which, for one reason or another, cannot be answered. If this happens, try to avoid giving the same response every time. An officer responding with "I don't know" or "I don't remember" to a series of questions may look evasive or uncooperative.

Instead, give some thought to each question and try to respond as directly as possible. Instead of "I don't recall" try variations such as "I didn't notice," or "I didn't see that," or "I wasn't looking at that."

Summarizing previous testimony
When a defense attorney asks a question summarizing previous testimony be especially alert. "Earlier you testified that... " may contain deliberate or negligent misstatements of your earlier testimony. If so, and you answer that question, it may appear that you agree with the attorney's summary of your testimony. Listen carefully, and if the attorney misstates your testimony say, "That is not what I said." Don't think, "That's close enough." The attorney is probably just setting the trap.

Times and distances
Attorneys frequently ask for estimates of the amount of time it took to do something. Don't guess, your guess may conflict with other witnesses testimony resulting in damage to credibility. Try to figure it out. For example: ATTY: "How long was the frozen sample kit out of the freezer?"; OFFICER: "Let's see. After I signed for everything, the lab tech brought me the sample. I drove directly to the police station which is 10-12 minutes from the lab. I went directly to the evidence freezer and returned the item to frozen storage which takes about 5-7 minutes. I would estimate it was out of frozen storage for about 15 - 20 minutes." Use a similar process when asked about distances.

Cross-examination concerning the accuracy of properly records
Areas of inconsistencies between testimony and written reports are prime targets for defense attorneys. Inconsistencies can appear between testimony and property reports or when testimony is given about something which was not included in the original documentation. If this happens, remember to remain calm and not appear defensive. If there is an error in your report, admit it. If something was not included, say so. It may be difficult to admit a mistake on the witness stand but it is better than trying to cover it up or making excuses. It is only human to make a mistake.

If something was omitted which turned out to be important, be humble. "It didn't seem important at the time, I guess I should have included it." Everyone can sympathize with a mistake, but not a cover up. If the attorney asks why you left the item out, think twice. Saying "I didn't have time to put it in" may give the impression the case is, at least in your opinion, unimportant. Be honest but word your response carefully to avoid irritating the jury.

"Did you talk to the DA or other police witnesses before testifying?"
The question is routinely asked by defense attorneys. Usually, the purpose is to imply the DA and police personnel needed to get "their stories straight." It is an ineffective and desperate tactic. Prosecutors are supposed to talk with evidence officers (or other police personnel) before going to court, and it is only natural for officers to talk amongst themselves about work.

Be careful of how the attorney asks whether you talked "about your testimony" or "about how you are going to testify." A yes answer to the second question will make it sound like your testimony was rehearsed. One evidence officer said "When asked if I talked to the DA or other officer about my testimony, I usually say something like, 'We didn't talk about how I was going to testify. We talked about the facts of the case. ' Or 'The things we talked about are the same things I testified to on direct examination."

"I don't know"
If you don't know the answer to the question, say so. Do not guess. There is nothing wrong with, "I don't remember" or "I don't know," or "I didn't see it."

Refreshing your memory
If you don't know the answer to a question because you simply forgot it, you may be permitted to review the property or police reports if you think it will refresh your memory. Do not just start reading the report whenever the answer to a question might be found there. Instead, ask for permission from either the judge or the attorney who asked the question. ("May I refer to the property report?")

PLAIN ENGLISH

There is nothing that turns off a judge or jury as much as hearing an officer using military-type, overly stuffed jargon that has become associated with law enforcement. The style is characterized by the use of words or phrases which are overly formal in place of simple and direct speech. For example: "I exited the police vehicle," instead of "I got out of the property van" or "That is correct" instead of "yes." Jurors don't warm up to officers who talk in a strange language. It comes across as cold, unfeeling and a lack of personality. It confuses the jurors. If a juror has to concentrate on the words rather then the testimony the officer loses all effectiveness. "Police jargon is fine for TV and Movies. But when accuracy is important, when you want to communicate with judges and jurors, it's terrible, " pointed out one prosecutor interviewed.

OTHER KEYS TO TESTIFYING
* Appear interested in the questions, as opposed to just saying 'yes' and 'no' in a flat monotone. Make your testimony alive for the jury.
* Don't lounge in the chair. Sit straight or lean slightly forward. It shows you are interested.
* Don't appear cocky or arrogant.
* Be thoughtful when answering questions. For example, if the DA shows you a gun and asks, "Is this the gun you stored into evidence?" Don't just say, 'yes.' Look at the gun carefully. If there is something distinctive point it out: "I an see where I initialed the tag on the weapon" or "My signature should be on the copy of the chain of custody attached to the weapon ... yes, here it is. This is the same gun. "
* Talk to the jury. Look at them when answering questions. Eye contact is important. Remember, the jurors are the most important people in the courtroom.
* There is nothing wrong with having a sense of humor on the witness stand. Let the jury know you are human. It's okay to laugh at yourself.
* It's okay to be nervous. It gives you a competitive edge.
* Don't worry when you can't figure out what the defense attorney is trying to accomplish on cross examination. A lot of attorneys ask meaningless questions. They are doing it for effect or because they don't know how to cross-examine a witness.
* Wear neat, clean, conservative clothes. Men should wear slacks, jackets and ties. Women should wear slacks, jackets and dress blouses. If you want to be treated like a professional, dress like one.
* If you are off duty, don't make a special effort to wear a uniform. Nice clothing combined with effective testimony works wonders.
* Refer to any suspects, victims, or other citizens by name. For example, "Mr. Jones" or "Mrs.
Smith," not the defendant or the victim. It sounds more professional and unbiased.
* Don't make statements that are merely conclusions. Testify to the facts as you know them to be.
* When a court clerk asks you to state your name, just say your name. Don't give your title. Don't spell your name until the clerk asks you to do so. ("Evidence Officer Roberta Smith, S-M-I-T-H.") It tends to sound showy and makes a witness appear self-important.




Copyright © 1993 International Association for Property and Evidence
"Law Enforcement Serving the Needs of Law Enforcement"


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