Law enforcement understands the importance of a winning attitude to winning street confrontations. Unfortunately, most witness preparation misses this point. Courtroom training on “How to Survive Cross Examination” is as common as it is wrong-headed. The goal for officers in their courtroom confrontations – as in their street confrontations -- is to win.
But it’s just as important to determine, “Win what?” What’s the win for a testifying officer? Many honest officers nation-wide answer, “Get the conviction.” Other honest officers reply, “Be competent and tell the truth.” Both these answers miss the “win” that a law enforcement witness must achieve in court.
If a witness thinks the “win” – the goal he should work toward – is “get the conviction,” do you think that affects how the witness testifies?
“Yes,” honest officers acknowledge.
How do you think it affects the witness' testimony?
“If they're trying to get a particular verdict, they're not going to appear objective. They're going to look biased.” reply honest and insightful officers.
Does that make them appear more or less credible to the jury?
“Less.” Right. Honest witnesses can appear not credible to a jury if they don't understand what their goal or “win” is.
The “win” for every witness is as simple as it is difficult. At the end of their testimony, the jury must find them credible. Credibility is the degree to which the jury believes a witness. That's the only goal, the only win, the only job for the testifying officer – to be believed by the jury. It’s a tough enough job.
The Simple Truth Is, It's Not That Simple
Being competent and telling the truth doesn't always result in an officer winning the credibility confrontation – especially at the hands of an experienced defense attorney. Otherwise, we wouldn't need any courtroom training or preparation. Officers in this country are amongst the most competent in the world. Likewise, the vast majority of them are of sterling integrity. But there’s more to appearing credible than being competent and telling the truth. Courtroom testimony training must address:
- How do jurors decide the credibility of a witness?
- What enhances or weakens witness credibility with jurors?
- How do we prepare officers to win their credibility confrontations?
What You Say, May Not Be What They Hear
About 25 years ago, Dr. Albert Morabian conducted an oft-cited study at UCLA. He and his researchers concluded that communication is comprised of:
- 7% WHAT we say
- 8% HOW we say it – tone of voice, pitch, volume, etc., and
- 55% NON-VERBAL STUFF – body language, gestures, demeanor.
This has amazing implications for testifying officers. If officers get any preparation by the prosecutor, what is all the time spent on? What the officer is going to say. Get that perfect and the officer is 7% of the way to communicating credibility. This explains how an officer can do a competent investigation, tell the truth, and still not be believed by the jury.
What determines how an officer testifies and his body language? Attitude. Effective courtroom training must address this critical component.
One Attitude Assessment
When I train officers, I give them a word-association test. After explaining that the officers will be given words to which they should respond with the first word that pops into their minds, I say, “Defense attorney.”
Exclamations fly: “Snake!” “Shark!” “Weasel!” “Slime!” “Dishonest!” “Deceptive!” “Liar!” There are also responses that can’t be printed. These are honest officers.