Did you feel totally prepared every time you testified?
When I ask officers this question across the nation, most respond, "No." I continue,
Q: Had you done a competent investigation?
A: Yes.
A: Sure, or we wouldn't be in court. (This is a wise officer.)
Q: Had you reviewed your report and developed a command of the facts?
A: Yes.
Q: Then what preparation were you lacking?
A: I didn't know what questions were going to be asked.
A: I didn't know what exhibits were going to be introduced through me.
A: I didn't know if any evidence had been suppressed.
A: I didn't know what the defense was.
A: I didn't get a pretrial meeting with the prosecutor.
The last answer includes all those above it.
Nation-wide, one of the most common complaints I hear from officers in courtroom testimony training is that they don't receive adequate pretrial preparation from the prosecutor. I understand this. Early in my prosecution career, I short changed police witnesses - until I experienced their pain.
"I have felt your pain."
Most prosecutors don't have to testify under oath, subject to cross examination by an experienced defense attorney whose sole, white-hot focused purpose is to attack their credibility. Accordingly, they might not be as sensitive to the officer's burden as they should be.
Early in my career as a prosecutor I had to testify in the prosecution of a state trooper for child sexual abuse. I was a small part of the case. I helped set the scene because I handled the child sexual abuse case the state trooper investigated during which he first got to know the child he was charged with molesting.
I wanted to meet with the prosecutor handling the case against the trooper before I testified. I was told,
"I'm busy meeting with civilian witnesses, Val. Just review the file on the case you handled. I'm just going to ask you what you observed about the interactions between [the trooper] and [the kid]."
Sound familiar? Just as familiar was the fact that the questions weren't limited to that area. The defense attorney went into lots of other matters on cross examination which led the prosecutor to do the same on re-direct examination.
I ended up sweating howitzer shells on the stand and my performance was so dubious it made the state's largest circulating paper where a reporter covering the trial wrote,
QUOTES OF THE WEEK … This honor goes to Judge James Hanson…. When witness Val Van Brocklin, a prosecutor, responded to a question with a long sentence despite the judge's specific order to answer yes or no, Hanson shrugged off the transgression. "The lawyer hasn't been born that can say yes or no," he explained.
Malpractice by any other name still stinks.
My experience testifying got me thinking. Police officers are critical witnesses no matter how small a part of the case their individual testimony is. That's because, if a police officer loses her credibility on the stand because she is inadequately prepared, it can cause the jury to doubt the credibility of the entire case - no matter how strong the evidence is. (Can anyone say Mark Fuhrman?)
If I'd been a civil practice lawyer instead of a prosecutor and I failed to prepare a critical witness and my client lost his lawsuit, my malpractice insurance would write a settlement check. Prosecutors are generally protected from negligence by governmental or official immunity. Still, I didn't want to do my job negligently.
After my experience on the stand, if I didn't have time to meet with every witness, I told my civilian witnesses to just review their statement(s) and tell the truth. I knew if they messed up, the jury would still look at the rest of the evidence. I met with every police witness - even if just a telephonic meeting - and I made sure we reviewed what the officer needed to know to be prepared.
What to cover in the pretrial meeting.
I went to a highly ranked law school and there wasn't a single class on how to prepare a witness for court. You may have to teach your prosecutor what needs to be covered in your pretrial meeting.
At a minimum, you should discuss:
- Direct examination - what questions will the prosecutor ask you?
- Cross examination - what questions will the defense attorney ask you? Having responded to any defense motions, the prosecutor is in the best position to know this.
- The style and tactics of the defense attorney - is she likely to be solicitous early on only to spring an unexpected trap? Is she a ranting attacker who will test your cool? Is she sincere, sarcastic, needling, pompous, understated, or bombastic? Discuss what you and the prosecutor know about the defense attorney's demeanor in court so you can mentally prepare for it.
- Inadmissible evidence - was any evidence suppressed before the trial? Is there anything else you should not mention - such as a defendant's prior criminal record - which might cause a mistrial?
- Errors or omissions in your report - are there any mistakes in your report which need to be addressed before trial or that you should be prepared to explain on the stand?
- Exhibits - does the prosecutor plan to introduce any exhibits through you? Make sure you can testify to the chain of custody. Does the prosecutor want you to draw a diagram in court? If so, review the facts necessary to be able to do so with confidence.
- Prior statements or testimony - did you previously testify in this case in support of a search warrant, at grand jury, or in a previous trial or deposition? Make sure you have a copy of any prior testimony and review it with the prosecutor. You can be certain the defense attorney is combing it for any errors or inconsistencies.
The squeaky wheel gets the grease.
I feel strongly about the prosecutor's duty to fully prepare police witnesses. The stakes are tremendously high - for the officers and their departments, for justice, for the community. I also know that at the beginning of my prosecution career I was sometimes negligent in this area and had to personally experience testifying to never repeat that mistake.
You may have to persuade your prosecutor of the necessity of a pretrial meeting. Officers nation-wide tell me they request such meetings and the prosecutor says she's too busy and that they should just review their report.
High stakes call for firm measures. If you've tried to schedule a pretrial meeting with the prosecutor and it becomes clear that's not going to happen, advise the prosecutor you will prepare as best you can by reviewing your report and knowing what is in it. Then I recommend you advise the prosecutor that you intend to write a letter to your boss and the prosecutor's boss advising them that you tried to get a meeting with the prosecutor to properly prepare for court and the prosecutor failed to meet with you.
This will accomplish one of two things. The prosecutor will "wake up" to the importance of meeting with you because she doesn't want her failure documented. If the prosecutor isn't persuaded, at least your letter will preclude her from complaining afterwards that you failed to properly prepare if things don't go well in court.
If you're not comfortable writing this letter, send the prosecutor an email asking her the questions listed above. You'll get her thinking about them, which will help the prosecutor prepare as well.
