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.
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