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March 12, 2009

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Scott Buhrmaster Topics & Tactics for Law Enforcement
with Scott Buhrmaster

Tips from a judge for better courtroom results

Following many years as both a prosecutor for the Cook County, Illinois State’s Attorneys Office and later as a defense lawyer, Richard Neville was elected judge. Over his 10-year tenure on the bench, he heard thousands of officers testify. In an interview with trainer Pat McCarthy, who appeared before Neville many times as an officer, several tips were shared from a judge’s perspective that can help you in court.

1. Remember, you’re not an extra prosecutor

Neville points out that seasoned officers with years of courtroom experience can be particularly susceptible to trying to “help” cases by angling their answers in a manner they believe will aid the prosecution. “They’ve seen a lot of good things and a lot of bad things happen in court. Sometimes that can affect their ability to be completely neutral when they get in to court.”

The best impression you can give, he says, is that you’re a regular officer just trying to do your job to the best of your ability. You didn’t single the suspect out. You’ve got nothing against him personally. You were just meeting your professional responsibilities and you simply want the truth to come out and justice to prevail.

“[An officer’s] job is to remember they’re neutral. They’re there to present evidence on behalf of the state to try and win a conviction, but they’re not there to be the prosecutor, they’re not there to be the judge and they certainly aren’t there to outsmart the defense lawyer. Not that a policeman can’t outsmart a lawyer, we know that can happen. But if you try to do it every time you’re in court, or if your mindset is that ‘I’m gonna beat this guy up at his own game. He isn’t going to trick me!” what you do is you end up in a little game of your own and you forget the bigger picture, which is there’s a lot of evidence coming in. You’re not the only piece of it.

“There are a lot of ways [for a judge] to make a decision,” Neville says. “One of them is, ‘How do I believe this officer?’ and if you look like you’re an advocate for something as opposed to being a neutral, you end up being less credible in my opinion.”

2. Don’t fall prey to emotional luring

Neville cites the example of a case where an officer’s use of force is questioned. What’s the first thing a defense attorney is going to try to show in court if he’s focused on proving that the level of force you used was excessive? He’s going to try to show the jury that you’re a hot head with a short fuse and an explosive temper. He’s going to try to give the impression that your behavior on the stand supports the accusation that you can’t control yourself or you’re prone to violence and you acted inappropriately. How’s he going to do that? By trying to agitate you and lure you into demonstrating some kind of physical or verbal aggression.

Resist the temptation to fire off a cynical remark or an “if looks could kill” kind of glance. Don’t point your finger aggressively or squirm in your seat like you can barely restrain yourself from jumping the box and strangling the attorney. Also avoid getting “cute” with your answers or firing a question back at the attorney out of frustration: “What would YOU do, Counselor?!”

You know things could get adversarial while you’re on the stand, and many times officers’ credibility is the only thing defense attorneys have to attack, so prepare yourself ahead of time to spot an emotional luring tactic and immediately be ready to counter it with calm.

3. Think like a defense attorney when you write your report

McCarthy suggests that you look at your reports through the eyes of a defense attorney. Where are the holes? Where are the angles of possible attack? What will he lock on to while I’m on the stand?

Make sure your report is as thorough, detailed and iron clad as possible, then make sure you’re ready to discuss the issues you can predict the defense attorney will bite down on.

4. Remember that it’s OK not to remember

One of the common misconceptions police officers have is that they need to have an answer for every question and they need to remember everything. That’s not true and it can prove dangerous to believe otherwise.

If you don’t know something or can’t recall specific details or events, by all means say so. Trying to fill in memory gaps or make up answers can wreck a case and put you in professional peril. Don’t fabricate. Tell the truth, the whole truth, and nothing but.

“Remember, you’re there to perform a job and your job is to testify truthfully, accurately and to answer questions you can and not to try to answer questions you can’t,” says Neville.

5. Be yourself

This may seem obvious, but it’s an area where officers can fall in court…particularly younger officers with little courtroom experience. Neville suggests being calm and confident but don’t try to look or sound smarter or more self-assured than you really are. The impression you may actually be giving is that you’re faking it or you’re cocky.

“All of us have different personalities, different ways of presenting ourselves, all of us have different ways of filtering information,” he says. “You can’t change who you are as a witness. Who you are, that’s how you’re going to be as a witness. Be comfortable with that.”

Talk as you normally would in a professional setting. Don’t unload with a sudden wave of lofty vocabulary or heavy legal phraseology. Remember that it’s OK to be nervous…most officers are when they’re called to testify. The jury needs to understand you, relate to you and believe you. Be yourself. It’s simple, but very important.

“Remember, your job is to convince people that you’re only out trying to do the right thing,” says Neville. “You’re doing your job. You don’t have a personal stake in whether Joe Schmoe goes to jail or doesn’t go to jail. Your personal stake is that you did a good job, you handled yourself professionally and your credibility should be accepted.”

For more on Pat McCarthy’s Street Crimes training programs and DVD series, visit www.streetcrimes.net. You call also call (800) 275-4915 or e-mail: realpolice@streetcrimes.net.

About the author

If you have tactical information, compelling incidents, general comments or topics you would like to share, please contact Scott Buhrmaster, Managing Editor for PoliceOne.com and the Director of Training for the PoliceOne Training Network, at: buhrmastergroup@comcast.net







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