To win in the courtroom arena, it’s essential to understand the criminal defense attorney’s job. The duty of any attorney is to represent the interests of their client, and defendants are interested in getting off — regardless of whether they committed the crime.
There are rules that limit what a defense attorney can do — they can’t falsify evidence or counsel a witness to lie, for example — but, they have no obligation to the truth and I continuously see officers shocked when they learn this firsthand in court.
Don’t blame defense attorneys. In U.S. v. Wade (1967), the U.S. Supreme Court told them:
“Defense counsel has no obligation to present the truth. …If he can confuse a witness, even a truthful one, or make him appear unsure or indecisive, that will be his normal course.”
Why would our highest court sanction defense attorneys subvert the truth by attacking a truthful witness? Because, also in Wade:
“Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth.”
Here are five common tactics employed by defense attorneys to try and get their clients off. More importantly, here are some strategies on how to beat them.
1.) Putting Everyone on Trial Except the Defendant
Defense attorneys will attack an officer’s credibility more often and harder than other prosecution witnesses just because you’re an officer. They know if they can raise a doubt about your credibility, it may cause a judge or jury to doubt the credibility of the entire case (remember Mark Fuhrman?).
Defense attorneys want to put you on trial so the jury will be distracted from who is actually on trial.
They don’t want to spend time on the evidence. The evidence proves their clients are guilty.
On days you are scheduled for court, put a QTIP in your pocket. If you feel yourself becoming defensive on cross examination, squeeze the QTIP to remind yourself:
You’ve got to master this at a Zen level. You can’t let yourself even feel defensive.
If you feel defensive, you’ll appear defensive. And what kinds of people are defensive? Guilty people.
And if you let the defense attorney have their way, that’s what the jury sees.
Your big power play is to understand defense attorneys can’t make you feel defensive — unless you let them.
2.) Miscasting the Officer’s Training
Defense attorneys will commonly ask an officer if he/she received training in the academy (or otherwise) on how to sound believable on the stand. The purpose is to suggest the officer is practiced at deceiving and appears credible because of special training in how to act, not because she’s testifying truthfully.
Be prepared to distinguish that you received training on how to testify professionally (not truthfully, that goes without saying) — to present information logically and concisely within the parameters of courtroom rules.
3.) Demanding a “Yes or “No” Answer to a Question that Needs Explanation
Cross examination mostly consists of leading questions. A leading question tries to put words in the witness’ mouth and limit the response to confirming or denying the statement phrased as a question. For example:
“Officer, you neglected to lift any fingerprints from the glassine bag, isn’t that correct?”
The examiner wants to prevent the jury from hearing pertinent, explanatory details. To be completely truthful, you must provide such details. If the defense attorney interrupts by asserting the question calls for a simple “yes” or “no” answer, tell the judge you can’t answer in the manner defense counsel is trying to make you without misleading the jury or violating your oath.
Wait for the court’s instruction. If the court punts to the defense attorney, advise the defense attorney the same thing.
If the defense attorney insists, he will be clearly communicating he intends to mislead the jury.
4.) Miscasting the Officer as Biased
If you don’t work days and receive overtime pay for court appearances during business hours, be prepared for the question,
“Officer, isn’t it true that you receive extra money every time you come to court?”
The intent is to suggest some perverse incentive to charge as many people as you can. Your response is that you get paid for court appearances during the day because you work nights and the pay is the same regardless of the verdict.
5.) Pursuing Repetitious Questions
Defense attorneys will commonly ask the same question several times just slightly rephrased. They’re hoping to obtain inconsistent or conflicting answers from the testifying officer.
If the prosecutor doesn’t object (they may have a good reason not to, like you’re doing a great job and the jury is getting frustrated with the defense counsel), listen carefully to the question and respond respectfully, “I believe I’ve already answered that question.”
The respect part is the key. It frustrates a defense attorney when they’re unable to rattle you. Furthermore, your show of respect enhances your credibility with the jury.
A Winning Mindset is the Key
Review your report, meet with the prosecutor to prepare, and remember: you’re not on trial.
Accept that defense attorneys are just doing their jobs and QTIP.