Throughout my 15 years representing police officers in disciplinary cases, critical incidents and grievances, I was often frustrated by a recurring reality: many did not know how to testify effectively. Even though I took the time to prep my police officer clients, they still faltered on the stand. Invariably I would have to call an officer to the stand to testify in their disciplinary case, since the same presumptions in criminal cases do not apply, and they would be fine during direct examination. Though some even faltered at that.
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However, when it came time for cross-examination, many watched their testimony unravel under pressure.
One case always comes to mind, and it continues to bother me because the officer’s testimony on cross-examination sealed his fate. I had dismantled one witness against him and raised doubt as to the credibility of another. Add to the mix the fact that opposing counsel for the police department was new, not confident in his case presentation, and mostly ineffective in his questioning of witnesses. I carefully guided my police officer client through 45 minutes of direct examination before turning him over to disciplinary counsel for questioning. Within 20 minutes my client had torpedoed his defense. No amount of objections on my part or rehabilitation on re-direct could save him.
He testified after a lunch break during which opposing counsel indicated to me that he thought the judge was leaning in my favor. The morning session had gone well for our defense, but I knew from years of experience that nothing can be assumed in the courtroom or an administrative trial hearing room until the judge issues a ruling. What happened to change our fortune? It was simple and at first had nothing to do with a word spoken by my client.
As soon as disciplinary counsel rose from his chair to begin questioning, my client’s body language shifted. He went from the open, cooperative demeanor expressed toward me on direct examination to a closed, disdainful countenance beginning with him leaning back in his seat and crossing his arms. If he had been in front of a jury, they would have noticed it right away as I had.
From thereon it went downhill as my client contradicted his direct testimony within the first ten minutes and then lied about something in the report that I told him not to sugarcoat and admit, which amounted to him using profanity while wrestling with an individual who resisted arrest by another officer. Under the law, what he said did not amount to a disciplinable offense under the circumstances and could be dealt with on my summation and in post-trial briefing. Nonetheless, when it came up, he lied about what he said, despite my having addressed it during direct testimony.
This was his second inconsistency in a matter of minutes. You can rightly assume the rest of the story. The administrative law judge ruled against him, finding his testimony on cross-examination to be evasive and untruthful.
Why courtroom testimony is becoming less common
One assumption I made as an attorney, after retiring from my 22-year police career, was that all police officers knew how to testify. My own experience of testifying in federal court trials, grand jury testimony in Manhattan, Westchester County and other points north of New York City, immigration hearings, suppression hearings, state court trials for burglary up to murder cases, and a multitude of traffic and DWI trials when in uniform led me to believe this was standard. I also watched other investigators I worked with testify and they were excellent witnesses, but my perspective was biased.
I learned that testifying is not what many police officers get to do. This realization was further cemented several years ago when one of my evening university students, a 16-year veteran of a busy town police department, inquired into how it was that I had testified so extensively during my career. He had only gone to trial on three traffic offenses, and one hearing. I was astounded. Some quick research indicated that I should not have been so surprised.
A March 2018 “New York Times” article on police perjury referenced the limited exposure to courtroom testimony police officers experience. The reason cited was the vast majority of arrests resulting in plea or dismissal. Officers intuitively know that the frequency of their courtroom testimony depends on an individual officer’s activity, local court practices, and the officer’s assigned unit. Existing research into police officer testimony is extensive but it mostly concerns perjury, not how often or effectively officers testify. What police perjury research shows is its prevalence. Common traits of perjury are contradiction, evasiveness and deception. The research and literature though do not provide what makes for good testimony, aside from truthfulness.
What works when on the stand?
The methods and standards are consistent and proven. Professional appearance, preparation, objectivity, credibility and effective communication are consistent guidelines in training. Avoid the use of police jargon, rely on simple direct sentences, don’t get into overly long explanations, and don’t shy away from the bumpier parts of your case, all go toward effective communication.
Preparation requires thorough familiarity with all notes, reports, witness statements, locations, equipment used and prior transcripts of testimony. Professionalism focuses on appearance, bearing and interaction with the prosecutor, defense counsel, judge and court personnel. All of the above dovetail into producing credible and objective testimony, but how does one get to that point, especially if an officer is called to the stand for the first time.
Just as officers visit the range to qualify several times a year to prepare for a deadly use-of-force encounter that may never occur in a career, they should prepare for testifying. Time and resource constraints do not permit mock trial scenarios for officers. However, digital resources and training are available not to mention the prevalence of courtroom video from actual cases. Midway through my yearly criminal procedure law courses I usually show students examples pulled from YouTube of excellent police officer testimony and compare to the poor performance examples. The differences are glaring and students quickly pick up on the positive attributes.
Don’t treat defense counsel as the enemy
One obstacle many officers face when testifying is learning not to treat defense counsel as the enemy. Even though defense counsel may often approach the officer on the stand as their enemy, the best tactic is to treat defense counsel respectfully and amiably, with confidence in your testimony. I have found that counsel will have one of two reactions. They either reflexively relax or, more commonly, increase their attack to rattle the witness.
A key skill experienced officers develop is learning jury control. This extends to the presiding judge. During a trial all participants, especially witnesses, are under the glare of the jury and judge. We are all human and often make initial judgments of people that we later support with confirmation bias. Don’t become a victim of this kind of profiling by giving judge and jury any impression other than complete professionalism and likeability. Leave theatrics and arguments to defense counsel. Don’t get pulled away from your goal of providing clear and credible testimony.
Why testimony matters beyond criminal trials
Why does it matter? Police officers can be called upon to testify not only in criminal trials, but evidentiary hearings, civil claims, grievances, arbitrations and disciplinary cases. The results in these proceedings can have significant implications for an officer’s career, including placement on a prosecutor’s “do not testify” list.
Watch videos, read up on attorney trial tactics and understand your limited role as a witness. Most of all, do not take questions personally.
The reality is that many officers spend more time preparing to qualify with a firearm than preparing to testify under oath. Yet credibility on the witness stand can be just as important to an officer’s effectiveness and reputation as performance in the field.
Police1 resources for courtroom testimony
