Win what?
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.
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?”
“Weakens it.”
“How?”
“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?”
“Absolutely.”
“And when you feel defensive, how do you think your voice and body language come across?”
“Uh, defensive?”
“What kind of people act defensive?”
“Guilty people.”
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.
Like the street, the courtroom arena has become more dangerous and complex. The stakes are incredibly high for officers and the communities they serve. Nothing exposes officers to more intense, public, microscopic scrutiny than a courtroom. One appearance can forever enhance or tarnish the officer's reputation and her department's. One officer's loss of credibility can set a criminal free and deprive a victim of justice.
Our officers are honest and competent. They care deeply and work diligently. They deserve courtroom training and preparation that incorporates available knowledge and science into real scenarios. They deserve training that is worthy of them and the risks and challenges they willingly face – on the street and in court.
