Courtroom Testimony – Cross-Examination Techniques
July 19, 2007 – 7:23 am
In response to my recent article entitled, “Chess And The Art Of Courtroom Testimony“, MikeB asked if I would discuss the tricks that defense attorneys use to discredit an officer’s testimony. There are probably as many courtroom tricks as there are attorneys so it would be difficult to create an all encompassing list of potential methods. However, there are some techniques that may be used more than others.
First, an officer needs to understand that court, by its very nature, is an adversarial environment just like a chess match. However, the stakes are much higher in a criminal trial than in a chess match. Always keep in mind that the purpose of cross-examination is to weaken and disprove the state’s case so the defense attorney is not your buddy. The professional officer must understand that the game begins long before he is called to the stand to testify. Some attorneys will try to start the game early by engaging the officer in an “off the record” discussion before court starts. It is a good idea to avoid these types of discussions because the defense attorney may attempt to use your comments against you during the trial. It may be a better strategy to refer the defense attorney to the prosecutor or at least have the prosecutor present during the conversation.
Regardless of the techniques that an attorney attempts to employ, it is critical that the officer keep his emotions in check. In addition to the fact that you can’t think clearly when you are under emotional stress, appearing nervous or angry on the stand can impact your credibility in the eyes of the judge and jury.
Experienced officers know that a calm voice can be used to defuse tense situations like domestic arguments. This same technique can be used to off-set an aggressive cross-examination. Even if the defense attorney is aggressive, the officer’s credibility may be impacted if the judge or jury notices a distinct change in an officer’s attitude or demeanor from direct to cross-examination. The officer should remain calm and courteous and give good, short, honest answers to all questions.
One of the most common techniques is the use of “Yes or No” questions. Basically, the attorney attempts to force the officer to answer a complex question with a “yes or no” answer. The officer should respond by first telling the attorney that the answer needs to be qualified. If the attorney insists on a “yes or no” answer, answer the judge and then ask him if you may qualify your answer.
The next common technique is the use of rapid fire questioning. This is an easy technique to defuse since the officer can control the rate of questioning by taking the time to consider each question before answering. This has the added benefit of allowing time for the prosecutor to object. The officer can also slow the rate of questioning by asking the attorney to repeat or rephrase the question.
Next, some attorneys will try to make the officer look inept by adopting a condescending manner. I used to frequently encounter this technique when I testified in DUI cases but, since I was a Breathalyzer instructor, I was pretty adept at answering questions related to the operation of the instrument. However, the defense attorney was usually asking his questions from a script that he obtained in a book. It was fun to ask the attorney if he could rephrase his question since he generally didn’t understand the topic well enough to do so. Normally, the best way to combat this technique is to answer the questions in a firm and decisive manner.
Officers should also be alert for the friendly counsel technique. Here the defense attorney tries to come across as the officer’s friend in an effort to obtain answers that are favorable to the defendant. The officer’s antennae should immediately go up if a defense attorney is trying to be a nice guy in the courtroom since his job is to diminish your effectiveness on the stand. Remember to beware of the wolf in sheep’s clothing.
The final technique is the badgering or belligerent attorney which comes straight from the television courtrooms. The purpose of this technique is to provoke an emotional response from the officer. Once you learn to recognize that the attorney’s aggressive manner is a performance it should be easy to deal with this technique. Simply remain calm, speak in a deliberate voice and be sure to give prosecutor time to object.
These are just a few of the more common techniques used by defense attorneys. One way to hone your testifying skills is to pay attention to other cases while you are sitting in the courtroom awaiting your case. Try to identify the techniques that defense attorneys use in other cases. Oftentimes, a given attorney will tend to use the same technique over and over. If you can identify these tendencies, it will give you an edge when you face the attorney in the future.
If you have a question or a comment about any article that appears in The Sisyphus Comments, do like MikeB and click on the ‘Comments” link at the end of the article. Intelligent questions and comments increase the educational value of the article for everyone.
9 Responses to “Courtroom Testimony – Cross-Examination Techniques”
I am going to teach a 4 hour class on court testimony as part of our deputies mandatory in-service training. What is your advise as for the content that can be covered in such a reduced amount of time without leaving more questions than answers, or vague information that on the long run could be counterproductive to my deputies due to the time limitations given to such topic.
Thnaks in advance for your help.
By Tony Z. on Jul 12, 2008
Am I picking up on something that’s not there, or is there the implication in your advice that the officer’s testimony should favor the prosecution over the defense? If the officer doesn’t have a dog in the race, why would they need tips on how to testify? And why focus on the defense attorney? Don’t prosecutors cross examine officers as well?
Or is it a given in L.E. that they will be trying to provide the best information and testimony – within the scope of lawfulness, of course – exclusively for the prosecution, at the expense of the defense? Doesn’t L.E. have a duty to provide exculpatory evidence that may vindicate the defense, including testimony?
There are reasons other than acrimony towards cops that motivate these questions and that cause me to question the fairness of L.E. in such an adversarial situation, where it’s in everybody’s interest to convict, not necessarily to provide a fair trial. Especially when the defense is seen as the enemy.
By Non-Criminal Justice Professional on Jul 22, 2008
By your name (Non-Criminal Justice Professional), it’s easy to see why you have taken sweeping generalizations and treated them as fact. First, when the prosecution calls a witness, it’s always because their testimony favors the prosecution. The defense always calls witnesses that favor the defense. Why is this shocking? Should officers not be trained on how to testify? Lawyers go through 3 years of law school (at least) and take courses in litigation. Why aren’t you questioning that? Rich was pointing out tactics used by defense attorneys to create reasonable doubt. It’s absolutely vital officers be taught how to properly testify to protect the integrity of the adversarial process (yes – it is adversarial). Cross examination is what you do to the other attorneys’ witness – not your own. Examination is what you do to your own witness.
Second, law enforcement provides all their evidence to the prosecution. Only the prosecution is required to provide information to the defense based on the rules of evidence. In some states, there is no reciprocal discovery and it is trial by ambush. In the vast majority of states, only the prosecution is required to engage in discovery. The defense has no such obligation. Is that fair to the victim of the crime? Or the community?
Third – you question the fairness of LE in such an adversarial situation. It’s adversarial by nature and by design. That’s why defense attorneys are advocates for their clients. ‘Fair’ is a relative, not absolute, term. The examples Rich points out about testifying are designed to teach those testifying how to clearly and precisely articulate the facts. In spite of deliberate attempts by defense attorneys to misconstrue their testimony. And yes – that does happen. Unless the defendant pleads out, they have a right to trial by either judge or jury. Conviction is done by the court and juries – not LE. Judges ensure the trial is fair – not LE.
The Supreme Court has long ruled that ‘trickery and chicanery’ are acceptable police tactics during the interview process. You link to one log entry and make sweeping generalizations about the entire process. That’s as unfair as it is uninformed. You make it sound like a game. It is anything but a game.
You apparently don’t understand the extreme responsibility when testifying in a process that could result in the loss of life or liberty for a defendant. As someone who has testified in hundreds of cases – homicide, rape, robbery – where my testimony was responsible for a conviction, it’s not something you take lightly. There are professionals on all sides who take their jobs seriously. Let’s not forget this isn’t just about the defendant – it’s about justice. And victims deserve justice as well.
By Morgan Wright on Jul 22, 2008
Of course not. But maybe you can clear something up for me. Perhaps I was not clear in my initial question.
My understanding is that L.E.’s role in a criminal case is to investigate a crime and provide evidence to the attorney, who then makes a determination whether to prosecute and, if choosing to, takes on the role of representing the State vs. the accused. From that point on, does the officer (at least technically speaking) justifiably have a *professional* interest in the outcome of the case, or is his or her professional interest only in providing dispassionate testimony as evidence for the proceedings and letting the system do its work?
What gave me pause was the singling out of the defense attorney as the danger. What about avoiding being “led along” or otherwise confounded by prosecuting attorneys? Don’t they employ similar techniques? I’m genuinely curious – is it just assumed that they’ll have worked their stories out ahead of time with the prosecution, and that there will be no element of courtroom discovery on their part?
By Non-Criminal Justice Professional on Jul 22, 2008
Thanks for the clarification, Mr. Wright and Mr. Schumaker.
By Non-Criminal Justice Professional on Jul 23, 2008
One more thing, since there seems to be some outrage here. I’m simply asking questions. As my name states, I am not a professional: you two are. Hence, the asking of questions and my appreciation for responses. You have opinions just like I do, which is understandable.
I’m sorry if the questions come across as disrespectful. That is not my intent. I am ignorant; I just would rather hear these things from the horse’s mouth so I know how the system works than to have blind trust in the executors of that system. I’m sure you understand.
Your responses and opinions are instructive, so thank you.
By Non-Criminal Justice Professional on Jul 23, 2008
Officers should have a professional, not personal, interest in their testimony. They should be professionally interested in providing an accurate account of the investigation, be articulate, be credible, competent and thorough. If they have a personal interest in the case, this is where bias can directly or indirectly influence testimony.
I always had a professional interest in the outcome of the case, including conviction. Why? Because when I investigated a crime (gang-related homicide – victim run over 8 times with their own car, e.g.), I was very diligent in collecting evidence, interviewing suspects, preserving chain of custody, etc. because I did not want my actions to result in the dismissal of a case. I also did not want my action to result in the creation of reasonable doubt. That’s all I can control. It was up to the prosecution to make the case to the jury – not mine.
There is always the possibility that either side will engage in conduct that is unethical. That’s why judges and juries are another check and balance. Good defense lawyers object when the prosecution leads any witness. As to courtroom discovery, there is the old law school maxim – “Never ask a question you don’t already know the answer to.”
In all fairness, Rich is not here to train defense attorneys. He’s here to train police officers. Defense attorneys get all sorts of training But in the end, the police officer is a small part in the overall process. Are there travesties of justice – yes. Have been – always will be. Not a perfect system. There are prosecutors who withhold exculpatory evidence (think Duke rape case), and there are defense attorneys who get witnesses to perjure themselves. I know because I’ve arrested them before.
If everyone does there job professionally, this would be a much better system. But, as someone who has actually been in places where there is little or no justice (Pakistan, Malaysia, Indonesia, e.g.), our system is the best one out there.
By Morgan Wright on Jul 23, 2008
Thanks, Mr. Wright. I appreciate transparency in officer training because I think it gives citizens insight into the reasons officers behave the way they do and helps them interact more productively with them. Understanding the way officers behave is vital for citizens because it allows us, in the most extreme cases, the chance to deescalate situations and avoid provoking reactions from officers who have take a militant view of “officer safety” or simply have bad attitudes. Just as you acknowledge an imperfect system and take measures to adapt, so must we.
Ultimately, there are a great deal of attitudes inculcated through training that tend to override officer’s baseline mentalities (what other purpose does training have?). These teachings affect the nature of citizen-L.E. interactions, often positively, but sometimes negatively (I’ve explored the negative side more, as you can probably guess). Citizens misunderstand these approaches at their own peril. While I am sure most officers are completely professional and dispassionate in their enforcement, citizens must be prepared for the unprofessional, quick-to-anger, brash types, since these encounters are often not of our own choosing and can escalate just as quickly from our point of view as from yours.
I really appreciate this blog’s transparency in discussing police issues, recognizing that there is a balance to be struck between openness and safety.
Rich’s Response: The only thing I would add is that the goal of remaining “completely professional and dispassionate” is just that – a goal. Sometimes I think folks (including the cops themselves) loose sight of the fact that a police officer is a human being – with all of the accompanying emotional baggage. It is sometimes difficult to watch the pain that people can inflict on one and other and remain totally disconnected. I guess that is the “professional” part.
By Non-Criminal Justice Professional on Jul 24, 2008
Jeremy – There is always a lot to learn from each other. One effective program I have found to help citizens really understand what it’s like to be a police officer, is the civilian-ride-along program. When you see what is dealt with during a regular shift, it is a perspective-changing event. I’d be interested in your observations after an 8-hour shift.
On the other hand, if you see or observe unprofessional conduct, almost every agency has an Office of Professional Standards. Bad behavior is the exception, not the rule. If it goes unchecked, it can severely damage the community relationship, which is antithetical to crime and problem solving. Police officers have no right to complain that the public isn’t helping them solve crimes if they perpetuate a negative perception.
Every commander I know is a pro, and not tolerant of unprofessional conduct. It reflects upon them and their agency (and advancement potential ;).
By Morgan Wright on Jul 24, 2008