Although the vast majority of criminal cases pass through the justice system without the necessity of a trial, it is always the best practice to assume up front that a case will result in a trial.
Recipt of a witness subpoena for deposition or trial is not when a law enforcement officer should begin preparing to testify. If you want to be an effective witness, your preparation commences when a call to action is received. Police officers, deputies, and troopers are involved in far too many cases to rely upon memory when sitting in a witness stand, the eyes of a judge and jury upon you, especially when it is not uncommon for months to elapse between arrest and trial (much longer than that if there is a conviction, appeal, and retrial).
Here are some Rules of Thumb designed to maximize your ability to be an effective andbelievable witness.
DO Begin consciously noticing items of evidentiary value as soon as you arrive at the scene. Record mental impressions based upon your training and life experience.
DON’T Never assume anything. If you bring a blasé or indifferent attitude to your work, it will be very noticeable when you get on the witness stand later. Even an average defense attorney will be able to use it to his or her client’s advantage.
DO Be inquisitive (after Miranda warnings, if custodial). Admissions are not the only things of value a defendant might utter. Often explanations, excuses, attempts to minimize, and downright denials will later be seen as inculpatory in the face of the actual evidence.
DON’T Never miss an opportunity to give a defendant a chance to talk. Silence does not carry meaning one way or the other. Speech often reveals guilt.
DO Write detailed notes and reports. This not only memorializes your observations, it provides you with something to later refresh your recollection before deposition and trial.
DON’T Concern that a too detailed report will provide too much information to the defense is not justified. It is much more likely that discovery of it will result in the defense realizing that a plea would be appropriate.
DO Prior to testifying, make it a point to review your report.
DON’T Having to answer a question with “I don’t remember” is never a good thing. It makes a very poor impression on jurors. This is why detailed reports and review of those reports is crucial.
DO If possible, meet with the prosecutor prior to testifying. In this way, you will be better able to understand your role in the case, any issues that might arise while you are on the stand, and whatever concerns the prosecutor has regarding the case.
DON’T It is never a good idea to keep your own concerns about the case to yourself. The prosecuting attorney needs to be aware of any potential problems of which you are aware. You may think them unimportant; that would be an assumption to be avoided.
DO When you are on the witness stand, always listen carefully to the question being asked, no matter which lawyer is asking it. This should insure that you understand the inquiry before responding. It is vital that you give responsive answers.
DON’T You need to avoid equivocation, elaboration, or saying things not directly responsive to what you have been asked. First, it may cause the trier of fact to suspect you are not being straight-forward. Second, unresponsive answers are objectionable. Third, especially if you have previously met with the prosecutor about the case, you should rely upon him or her to give you an opportunity to elaborate on re-direct examination if appropriate.
DO Try to avoid copspeak, e.g., the lingo that is part of the unique work that you perform. All professions have jargon that becomes part of their everyday speech, but it has no place in court while testifying. For instance, the defendant is “Mr. Jones,” not “the subject.” You did not respond to a 10-32, you responded to a call about a man with a gun.
DON’T Avoid coming off as an authoritarian, a know-it-all, or a person who does not believe he makes mistakes. You will antagonize the trier-of-fact, never a good thing. Never lie or make up anything. The evidence, and often another witness, will contradict you. After all, you are under oath to tell the truth and, as Mark Twain so uniquely put it: “If you tell the truth you don’t have to remember anything.” Hopefully, you will see from what I have reviewed above that his quote may be humorous but isn’t exactly accurate.
Keep in mind that the case in which you are testifying may not strike you as the biggest of deals but, to the person charged, it may well be, and so it will be to most jurors. They will strive to be fair and will have taken an oath to do just that, as has the\ judge. If you as a law enforcement officer leave an impression that you too are fair and follow the law, your time on the witness stand should be worthwhile.