Are you ready to testify? Part 2


In this issue

I. Are you ready to testify? Part 2 of a special Newsline report
II. Halloween 2007 by Dave Smith

Are you ready to testify?
Part 2 of a series of tips on being an effective witness

With Valerie VanBrocklin

Continuing from Part 1 with our special series on courtroom tips for Newsline members shared by former state and federal prosecutor Valerie VanBrocklin...

F. Speak clearly and plainly.

"Something happens to law enforcement officers when they take the stand," says VanBrocklin. "For some strange reason they begin talking like they never do in real life. Why this occurs is a mystery. Is it taught in secret sessions at the academy? Is it in the water they drink at the department?"

Speaking in plain terms is very important to having your point understood. It also influences the way the jurorsand the judgeperceives you. Consider the following federal court judge's reaction to a case filled with "police speak": "The agents involved speak in an almost impenetrable jargon. They do not get in their cars; they enter official government vehicles. They do not get out of or leave their cars, they exit them. They do not go somewhere; they proceed. They do not watch or look; they surveille. No one tells them anything; they are advised. An agent does not hand money to an informer to make a buy; he advances previously recorded official government funds." [U.S. v. Marshall, 488 F.2d 1169 (9th Cir. 1973)].

Do not try to impress the jury with your superior intelligence and vocabulary.

If it's necessary to use technical terms, explain their meaning. Avoid slang and answers such as, "yeah." Don't fill pauses with "um," "uh," "you know." It's O.K. to simply pause in silence and collect your thoughts. The jury won't fault you for appearing thoughtful.

G. Describe rather than conclude.

Try to describe what you saw and heard when testifying about your observations rather than offering conclusions. For example, if a person was nervous, testify as to what you observed that makes you conclude that: "He was visibly perspiring; his eyes darted around; he couldn't sit still; he kept looking at his watch; he was swallowing hard and licking his lips frequently; his voice quivered; his hands were trembling." [Many of the indicators of guilt described in "Tactics for Criminal Patrol" you may be testifying about if you are making drug busts resulting from following the guidelines outlined in the book.] Testimony like this is more effective not only because you appear more objective and unbiased but because it is simply more interesting. "Think of yourself as a true crime author trying to keep your audience's attention," says VanBrocklin. "Detailed description is much more effective than mere conclusions.

H. When being questioned, look at the examiner; when answering, look at the jury.

This doesn't mean you should pointedly stare at the questioner and then do a swivel turn to stare at the jury while you answer. Don't act like you're watching a tennis match. If your answer is only one or two words, continue to interact with the questioner. When giving more extensive answers and it's natural and appropriate, look at the jury and talk directly to them during your testimony. They are your audience.

I. Don't hesitate to have a question rephrased or clarified.

Do not answer a question you don't understand. Do not guess at what the question is asking. It may be difficult to admit you don't understand a word the examiner is using, but it is certain at least one juror shares your confusion. Consider this humorous example taken from an actual court transcript:

Q: James stood back and shot Tommy Lee?
A: Yes.
Q: And then Tommy Lee pulled out his gun and shot James in the fracas?
A: (After hesitation) No, sir, just above it.

[Lederer, Richard, Anguished English, An Anthology of Accidental Assaults Upon Our Language, Dell (1989)].

If you don't understand a question, don't simply ask the examiner to "repeat" it. Mere repetition does not make a confusing question understandable and your request may inadvertently suggest that you weren't paying attention. Instead, admit that you don't understand the question and ask the examiner to rephrase or clarify it. The jurors who didn't understand it either will silently thank you and note the care you take to be accurate in your testimony.

J. "I don't know," vs. "I don't remember."

When you are sure you don't know the correct answer to a question, say so clearly and confidently. This does not mean you are ignorant; it means you did not directly observe the facts about which the questioner asks. However, if you're not positive that you do not know, say, "I don't remember." This is an important distinction. If you say, "I don't know," you close examination on that point. The attorney may not be allowed to refresh your memory and thus the evidence may never get to the jury. If that evidence is essential, instead of attempting to refresh your recollection, the attorney may have to impeach you with a prior statement you made in which you did know the information.

K. Refer to your report or notes, if necessary.

Opinions differ on the advisability of an officer referring to notes and reports while testifying. Some officers think that the jury is more likely to trust notes and reports made closer in time to the events recorded and will, therefore, give more weight to testimony directly from this written documentation. Prosecutors and judges generally prefer a witness testify from his or her recollection directly without relying on note and reports. This is not to say that if you need to refer to your report to refresh your memory in order to give complete and accurate testimony you should hesitate to do so. But, DO NOT rely on reading from or repeatedly referring to your report as a substitute for thoroughly preparing and refreshing your recollection BEFORE your testimony.

Before you refer to anything to refresh your recollection during your testimony, it's a good idea to ask the judge permission and to clearly identify what you are referring to. [Special note: Be aware that the rules as to when notes used to refresh your recollection are discoverable to the defense differs amongst states and the federal rules of evidence. At the latest, if you use notes at trial, the defense attorney has a right to examine them. Obviously, they should be free of any inappropriate content. Moreover, anything you might use to refresh your recollection on the stand should have long ago been provided to the prosecutor who can ensure compliance with all rules regarding discovery obligations.]

L. Do not discuss your testimony with other witnesses.

In most criminal trial, one or both attorneys have invoked the "exclusionary rule" which excludes a witness from being in the courtroom and listening to the testimony of any other witness. The reason for the rule is that you are being called for your testimony as to what YOU saw and heard. People are naturally influenced by what they hear. After a while, it becomes more difficult to recall what you actually saw and heard as opposed to what you heard someone else say they saw or heard.

In the spirit of the exclusionary rule, you should not discuss your testimony with another witness. Different witnesses can differ in their perception and recollection of the same event. The jury doesn't expect you to necessarily agree with or parrot other witnesses' testimony. If you do, it suggests collusion or rehearsing.

In many courts jurors receive an instruction from the judge regarding discrepancies between the testimony of witnesses. This instruction, which is usually part of a longer one that provides guidelines on judging the credibility of witnesses, often includes a statement similar to the following:

"You should bear in mind that inconsistencies and contradictions in a witness' testimony, or between the testimony and that of others, do not necessarily mean that you should disbelieve the witness. It is not unusual for persons to forget or to be mistaken about what they remember and this may explain some inconsistencies and contradictions. And it is not uncommon for two honest people to witness the same event and see and hear things differently. It may be helpful when you evaluate inconsistencies and contradictions to consider whether they relate to important or unimportant facts." [Taken from Alaska's Pattern Jury Instructions].

[Special note: Request that the prosecutor provide you with a copy of the pattern jury instruction in your jurisdiction that provides jurors with guidelines for judging the credibility of witnesses. "It's surprising how many officers, even those who testify frequently, are unaware that the jury receives such an instruction or are unaware of its content," says VanBrocklin. "It's your credibility being judged. Wouldn't you like to know the criteria?" Keep a copy of the instruction and re-read it before beginning every investigation and each time before you testify. The instruction provides tips that will help guide you along the path to being an effective witness.]

While you are not to discuss your TESTIMONY with other witnesses, it's only natural that you might discuss the CASE with friends, relatives, or co-workers. Do not hesitate to acknowledge this on the stand. Also, don't hesitate to to acknowledge that you prepared to testify by meeting with the prosecutor and discussing what questions you would be asked. "You consider testifying a serious and important responsibility," says VanBrocklin, "and you would be derelict not to prepare for it."

M. Profanity.

Profanity should be used in court only if it is a direct quote. Moreover, you should warn that profanity was used and ask the examiner if he/she wishes to have it repeated. This shows your respect for the jury's sensibilities and emphasizes the indecency of the language, which is usually the defendant's or a cohort's.

N. Addressing the court.

Always use the term, "Your Honor." "Judge" is too familiar and informal, except when combined with the judge's name in referring to an absent judge in the third person.

"The credibility and competency of law enforcement officers is being challenged and attacked in the courtroom more than ever before," says VanBrocklin. "The burden of those officers who fail to meet the challenge is borne by every law enforcement officer, and by every victim whose crime goes unredressed because we did not properly train and mentally prepare for our courtroom confrontations.

"Looking back on the years I spent as a state and federal prosecutor, most of the many fine police officers I saw wounded on the stand in courtroom confrontations could have easily been victors had they just been properly trained and prepared for these encounters. Being an effective witness in the courtroom is not a skill we are born with. The good news is that it is a highly trainable skill."

About Valerie VanBrocklin

Described by Calibre Press as “the indisputable master of enter~train~ment,” Val Van Brocklin is an internationally acclaimed speaker, trainer and noted author. She combines a dynamic presentation style with years of experience as a state and federal prosecutor where her trial work received national media attention on ABC’S PRIMETIME LIVE, the Discovery Channel’s Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, Val appears in television, radio, web casts, newspapers, journal articles and books. Contact Valerie VanBrocklin

Halloween 2007

By Dave Smith, Senior Street Survival Seminar Instructor

One upon a Newsline nearing, while I thought, alone and fearing,
About many a sad and tragic tale of the fallen from our shore,
While I sat there, nearly sleeping, suddenly there came a beeping,
As do email gently beeping from the Blackberry by the door.
"Tis just an email," I muttered, "beeping notice by the door — 
                                               Probably that, and little more."

Oh, so clearly I remember, fifteen gone and maybe more,
Anxiously I wished tomorrow, November without all this sorrow — 
Sorrow for each one in their passing, that made me cry, "no more!"
Vainly I tried to borrow from my memories joy not sorrow,
Of Thanksgivings’ many smiles, happy laughter, soon to be here evermore. 
                                                This I need and nothing more.

Then in my chair slowly turning, all my fears within me burning,
Then again I heard the beeping somewhat louder than before.
"Certainly," I said, "it's just an e-mail, probably spam, and nothing more."
Let me look then, what it is, this puzzle to explore, 
                                                "It is an e-mail, nothing more!"

Open now I did the e-mail, pressing "open" and nothing more,
The title neutral, "newsletter" it said and no more,
There I sat, mostly guessing, at meaning of the title,
Why tell the story of the drunk who could drink no more?
What was it the e-mail promised, promised if I read some more?
Heart pounding I read of the sign unseen, of the stop not made and more, 
                            Of the deputy, to return home, "nevermore!"

Then, I found, my heart grew weary, with all the training and all the worry,
All we seemed to do was hurry from tragic tale to another, fallen sister, fallen brother,
Halloween brought no relief, from the truth the e-mail bore,
When would peace be in our land, and when would death still his hand? 
                                I read the e-mail and knew ... nevermore.

Freedom is a thirsty tree, and however strong we may be,
The price is blood from friend and foe, it’s a simple truth you must know,
You must prepare yourself each day, for all the evil in your way,
And listen to your brother’s fears and wipe away your sister’s tears,
Wear your armor, shine your shield, steel your heart and never yield,
For when we speak of October and so many fallen we will say forever more, 
                                                                             Nevermore.

With apologies to Mr. Poe, 2007 continues to be a terrible year for officers killed through assaults and accidents. The greatest antidote to this is you ... no one else. The one responsible for your safety and preparation is you.

In psychology this is called "locus of control" and it an essential element of optimism and that is one of the true personality traits of a winner! And as we say in the Street Survival Seminars, we only have one rule and that is "Win!"

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