I then ask, “Do you think you take that attitude to the stand?”
After a thoughtful pause, “Sure.” These are honest and insightful officers.
“Do you think that attitude enhances or weakens your credibility?”
“We act differently with the defense attorney than with the prosecutor.” “Yeah, and then we look biased.”
“When the defense attorney cross examines you, do you ever feel attacked?”
“Sure, we are attacked.”
“How does that make you feel?”
“Like we're the one on trial.”
“Does it make you feel defensive?”
“And when you feel defensive, how do you think your voice and body language come across?”
“What kind of people act defensive?”
When an officer begins to feel defensive on the stand, he will appear defensive. And, just like officers, jurors think that only a guilty person – a person with something to hide -- acts defensively.
Have you ever heard the saying that defense attorneys try to put everyone on trial but the defendant? This is a great strategy. A defense attorney doesn’t want to put the facts on trial. The facts prove the defendant is guilty. A defense attorney's most fervent hope is that she can make an officer feel defensive because then the officer appears defensive and loses credibility with the jury. Defense attorneys understand that if one officer loses credibility it can cause the jury to doubt the credibility of the entire case.
The solution to this challenge is also as simple as it is difficult. You can simply decide you are not on trial, that you have nothing to be defensive about, and testify accordingly, including admitting any mistakes. This is exceedingly difficult. It takes supreme will power, conscientious attention to detail, and steadfast character – all qualities that make a great cop.
Behaviors that Enhance & Weaken Credibility
Juror comments from post-trial interviews indicate the following behaviors weaken a witness' credibility:
- defensive or evasive tone of voice
- appears ill at ease or nervous
- uses indirect eye contact
- crosses arms defensively across chest
- quibbles over common terms
- sits stiffly
- looks to attorney for assistance during cross examination
In contrast, jurors note the following behaviors enhance credibility:
- displays an even temperament on direct and cross examinations
- doesn’t become angry or defensive when pressed
- appears at ease
- is likeable and polite
- maintains eye contact with attorney and jury.
From Presenting Insurance Company Witnesses, by Trial Behavior Consulting.
None of these have anything to do with what the witness says. They all have to do with attitude and its expression in how officers testify and their body language.
Training to WIN
To the extent courtroom training and preparation focus primarily on what officers are going to say, both gravely miss the mark. To prepare officers to win their credibility confrontations against experienced defense attorneys, officers must be taught the science of communication as it applies to testifying. But that's just the beginning.
Officers need to be taken through an assessment of attitudes they may hold that significantly impact their credibility with the jury – often without their awareness. The “win what” exercise and word association above are but brief examples.
Then, training must focus on changing attitudes that weaken officers' credibility. Just becoming aware of the impact attitude can have on credibility is a tremendous start with many officers. But as most trainers understand, knowing something and being able to apply that knowledge under pressure are very different things. That's the push behind scenario-based training.
Scenario-based training for effective courtroom testimony must involve realistic cross examinations that are designed to place the officer on trial and make him feel defensive. Such scenarios abound because defense attorneys know the impact one officer’s credibility loss can have on the entire case.
Each scenario must be followed by feedback from audience members participating as “lay jurors.” These can be volunteer citizens or other officers who have been properly briefed for their roles. Videotaping can be a very effective training tool but it cannot replace juror feedback. After this feedback, training should provide a structured debriefing of each scenario. This debriefing would include an opportunity for the testifying officer to explore what she was thinking and feeling during the scenario and conclude with the trainer incorporating the jury feedback with principles of communication science. Finally, the trainer should model the winning solution for each scenario.