Sun Tzu and...

Sept. 15, 2008
The best defense is an offense. Take opposing counsel by surprise.

What are we afraid of?

In my courtroom testimony training, I often ask officers how many of them meet with the defense attorney before trial. The response? Almost none do. Or they do so only if the defense attorney asks and they check with the prosecutor to see if it's okay. Or they tell the defense attorney they'll meet with her, but only if the prosecutor is present.

I then ask, "Why?" Responses vary but they boil down to:
Why should I meet with the defense attorney when she'll...

  • Take what I say out of context
  • OR misrepresent it
  • OR look for any inconsistency
  • All to impeach my credibility on the stand

When I ask prosecutors why they're not encouraging officers to meet with the defense, they say they're concerned the officer will say something she shouldn't. I ask, "Like what?"

The responses tend to be vague - "Something that will get her in trouble on the stand or hurt the case."

Again, I ask, "Like what?" to which prosecutors usually ask, "What are you getting at?"

And I reply, "What are YOU getting at? Given that we're required to disclose to the defense any incriminating AND exculpatory evidence, what are you afraid the officer is going to say that hasn't already been provided in discovery?"

At this point, prosecutors start giving the same response as the officers above.

And I say to both officers and prosecutors, "So what?" Then I explain.

So what if the defense attorney takes something the officer said out of context. The officer will simply testify that the defense attorney's question has taken what she said out of context.

Ditto for any misrepresentations.

So what If the officer makes a statement to the defense attorney that's inconsistent with her report or any previous testimony? If asked, the officer will admit the inconsistency on the stand and say, 'I made a mistake.' Unless an officer has LIED, these inconsistencies are honest mistakes. They're not going to raise a doubt about the defendant's guilt. And the officer's forthright admission of an honest mistake will enhance his credibility with the jury.

[See web link below for Witness Credibility: How important is it? and research that admitting a mistake can enhance credibility.]

Next, officers and prosecutors argue that it will then be the defense attorney's version of what the officer said in the meeting against the officer's version. To this I respond,

Let me get this straight. We're passing up a golden opportunity to take the defense attorney completely off guard AND find out what she's interested in - which we otherwise don't get to know - because you're afraid that in a one-on-one credibility confrontation between our officer and a defense attorney, the DEFENSE ATTORNEY will win!?

I don't subscribe to this defensive posture. What kind of people act defensive? Guilty people with something to hide. We're the good guys. We have nothing to hide. We have already disclosed all incriminating and exculpatory evidence. I'm confident that the officers it's been my honor to work with as a prosecutor and trainer for over twenty years across this country can win confrontations about their credibility.

But if officers don't BELIEVE they can win a confrontation on their credibility, what's the likelihood they will? [See web link below for The Power of Belief.] We've got to stop this defensive attitude.

Know your opponent

Sun Tzu, the ancient Chinese warrior, taught his men to "know your enemy" before going into battle. For "if you know your enemy and know yourself," he wrote, "you need not fear the result of a hundred battles."

If you haven't heard of Sun Tzu, he was the Donald Trump of the Chinese warlord set. His book The Art of War is consulted even today by generals, executives, coaches, politicians, warriors, educators and leaders around the world.


Sun Tzu also said of your opponent, Attack him where he is unprepared, appear where you are not expected.

What if an officer in a criminal case that was set to go to trial called up the defense attorney and said,

Mr. Sharkey, I'm Officer Doright. I'm calling about the _____ case. It looks like it's going to trial. I've met with the prosecutor and I wondered if you'd like to meet with me.

When I make this suggestion, officers laugh and say it would probably give the defense attorney a heart attack. Sun Tzu addressed that too,

"The best victory is when the opponent surrenders of its own accord before there are any actual hostilities... It is best to win without fighting."

Seriously though, it would certainly surprise the defense attorney. It would dramatically communicate that the officer is unbiased, comfortable, confident, and has nothing to hide from either side. The exact things we want to communicate to the jury.

It accomplishes something else. It takes away from the cross examination about how the officer met with the prosecutor but did NOT meet with the defense - and all the implications of bias the defense will argue from that in closing argument.

It gets better...

The defense attorney can't ask or tell the officer anything in a meeting without giving information. This is information the prosecution would not otherwise be entitled to under the rules of discovery.

A meeting between the officer and the defense attorney may well reveal potential defenses and potential cross examination of the officer or other witnesses at trial. These are good things for the officer and the prosecution to know before trial. They may disclose areas the police will want to check out, and possibly rebut with evidence, before being surprised at trial.

Sun Tzu said, "Opportunities multiply as they are seized."

Val says, "We're the good guys. We've got nothing to be defensive about. Go on the offense. Seize the opportunity of meeting with opposing counsel. There's much to be gained."

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