When you attended the academy, whether more recently or back when the Earp brothers were being outhouse trained, like me, you probably had some form of training in courtroom testimony and procedures. Some training facilities set up mock trials and put students on the "stand" to have questions fired at them by instructors, acting as prosecutors and defense attorneys. In my class, for more dramatic effect, the training facility secretary acted as the courtroom stenographer, and she appeared to be typing away on a keyboard, recording every word of riveting testimony. In hindsight, I'm guessing she was typing her resignation, as I recall seeing truck driving school brochures on her desk one day. Sometimes, I wonder what her CB handle became.
No amount of initial classroom instruction can adequately prepare an officer for court. Lost sleep, missed little league games, and getting grilled by a defense attorney for real (not just in a mock setting) are a few stressors that are real and unavoidable. Obviously, the more serious and time consuming a case is, the more these negative factors augment themselves.
Whether you're an experienced officer with a lot of court time under your belt or a newer officer looking for some guidance, the purpose of this article is not only to review techniques to make us more effective in court, but to discuss and, hopefully, debunk myths about this important, though painstaking, facet of a law enforcement career. We'll also cover some things that have changed a bit as a result of better technology. Your particular department and the court system in your jurisdiction may have policies and procedures that differ from the advice and observations below. Check with them about any questions you might have.
Myth: A Few Typos Will Doom You in Court
Clearly, one of the most powerful tools we have as police officers is our ability to communicate, both verbally and through written reports. A reasonable level of skill in both forms of communication will make our cases stronger, especially if we're called to testify.
Note the emphasis on "reasonable" level. Newer officers are often led to believe that if their reports aren't perfect and grammatically correct in every way they'll be "laughed off the stand" due to a defense attorney pointing out every small grammar or report misstep to a jury. According to legend, everyone in the courtroom will be doubled over, laughing uncontrollably. This will likely include the judge, defense attorney, and jurors—and the defendant's stepmother and cousin (who, on occasion, is the same person).
This just isn't the case. No report is perfect, because they're written by cops, who are human beings—and there are no perfect human beings. Should we do our best when completing our reports, especially when they involve an arrest? Absolutely. Might a defense attorney point out our errors and pretend he can't understand what we're saying if we make a mistake? Sure. However, in all honesty, they will do that anyway. Even if an officer's report is nearly perfect, the defense will attempt to find things to pick apart. Let them. Because if you know your case and have practiced testifying (as we'll discuss later), you will do just fine.
Let's not fret over things that, generally, never occur. Newer, less experienced officers are already likely to be nervous about the court process, especially testifying. Why add to their anxiety by perpetuating a false myth?
Myth: Be Very Afraid Because Your Report Will Be Carefully Scrutinized
There's nothing to fear. There will likely be a basic, initial review of your report by the prosecutor or a judge (each jurisdiction is different) to ensure the report is understandable, the arrest made meets the element of the crime(s) charged, and nothing of major importance has been omitted. Though it can depend on the seriousness of a case, the notion that the prosecutor hovers for hours over your report looking for mistakes and inconsistencies is largely baseless. Here is a typical example of how many cases play out:
You arrive for court and take a seat in the least worn chair you can find in the designated waiting area for officers. You wait, while thumbing through the 6-year-old "Field and Stream" magazine, with the address label torn off, which was lying on the worn coffee table. Finally, the prosecutor breezes in, coffee cup in one hand, a manila file folder in the other, and asks something like, "Who's here on the Smith case?" You quickly transition your attention from the fascinating "Best bass boats of 2010" article you've been enjoying and join him on a fast-paced walk to the courtroom, while he looks quickly at your report and asks you some initial questions. So much for him scrutinizing it carefully before court. As we discussed above, and to your relief, he never once mentions your comma splice.
As you arrive at the courtroom, he explains to you that the jury pool has been sent home because your arrestee has agreed to plead to a lesser charge. He asks you to have a seat at the prosecutor's table with him in the courtroom. The plea agreement is discussed between the defense, prosecutor, and the judge. The vast majority of the time, the judge will accept the plea agreement, and the prosecutor will thank you for your time and send you home to your spouse, who eagerly awaits your arrival (the garbage disposal is broken again).
This is roughly how many cases are resolved. Many balk at the very idea of plea agreements. However, they're truly a necessity. If every case proceeded to a full trial, our court system would be a decade or more behind and would be financially unsustainable.
But what if your case does go to trial?
Myth: It's OK Not to Show Up for Court
One trend that's become prevalent is subpoenaed officers simply deciding for themselves not to attend court. "I've already got plans" or "It's just a traffic case" aren't reasons for not appearing. Fortunately, for more serious cases, officers obey the subpoena and make it to court. But for more "minor" cases, what has caused the increase in officer no-shows?
It seems technology might be directly or indirectly responsible. In many jurisdictions, hard copy subpoenas are no longer delivered and have been replaced by electronic subpoenas that are delivered to us via email or other messaging systems. In the past, we received paper subpoenas when commanded to appear. When this occurred, you were considered "served." There was something about being handed a piece of paper with the seal of the court, declaring, "You are commanded to appear" and signed by the judge. It made a statement that the electronic versions simply don't—as in, "You better have your butt in court on the day and time indicated!"
Some officers believe there will be no consequences when they arbitrarily choose not to appear, even though they've been subpoenaed. This can be true—for a while, anyway. However, like jury duty no-shows, judges eventually tire of officers disrespecting their court by failing to appear. They become frustrated with wasting time (and money) in the initial processing of cases then witnessing the defendant show up, yet not the officer. Usually, without warning, judges hold officers in contempt of court, even for cases often considered less serious.
It's no secret the defendants hope we don't appear. It's a game to them. Obviously, their case will likely be dismissed if we don't show. Why give them that satisfaction? By not appearing, you might cause someone who is a dangerous driver to retain his or her driving privilege, which the judge may have suspended or revoked had you appeared. The court will probably lose out on court costs, as well.
Supervisors, trainers, and peer officers should reiterate to newer officers that attending court isn't optional when subpoenaed. If you aren't willing to see a ticket or case through, why bother looking for the violation in the first place?
Myth: You Must Speak with the Defense Prior to Trial
Defense attorneys sometimes attempt to contact and interview us before a trial. Often, it will be an investigator who works for the defense who contacts you. Unless the prosecutor has specifically advised you to talk to the defense (highly doubtful), the best rule of thumb is to decline the interview respectfully—at least initially, until you speak with the prosecution and see how they want you to respond to the interview request.
You might also be contacted by the defense more informally. For instance, they may attempt to strike up a conversation with you outside the courtroom during the trial. They'll approach you nonchalantly and try to make you feel like it's fine to speak with them, because, "We're all actually on the same team." No, we're not!
I've had them casually approach me and attempt to gain my trust through small talk and questions, not even related to my case. They've inquired about my age, what city I live in, where I went to school, where else I've worked, and other personal information. They might also ask questions regarding fellow officers or others involved with your case. I'm not suggesting all defense attorneys are bad apples. Though it's difficult, remember, they're a vital part of the criminal justice system. Keep in mind, however, they aren't approaching you with questions like this for no reason or to be your cool new friend.
When they try this, I simply inquire of them why they're asking me these types of questions. Be civil, yet don't be afraid to let them know you're not interested in speaking with them ahead of testifying, without consulting with the prosecution. Be especially mindful before interacting with attorneys other than your own, especially if you're involved in a civil case in some capacity.
Myth: There's No Way to Practice Testifying
Have you ever participated in a hiring (oral) board for your agency? I'm amazed at how little the applicants prepare. For the physical agility test, they'll begin a fitness regimen weeks before to prepare. They'll purchase books with tips on how to take the written exam to prepare. But when they're interviewed, it doesn't take long to conclude that most applicants haven't prepared for it.
That's because conventional wisdom tells them that, since they don't know exactly what will be asked of them, it's impossible to prepare for the interview. This is false. If they took a few minutes a day before their interview, wrote down potential questions and answers they believed might be asked of them, and had someone act as a mock interviewer, they would do dramatically better. Why? Because practicing, even if they don't practice answering the exact questions they're eventually asked during the interview, is still more beneficial than not doing so at all.
This same principle applies to preparing for court testimony. For example, if you'll be testifying in a domestic violence case, the defense attorney will likely ask you some questions pertaining to domestic violence laws in your state, and why you thought they applied. They'll probably ask what specific training you've had in domestic violence. They'll likely focus on any injuries you reported the victim sustained—possibly to make it appear the injuries weren't fresh and weren't related to the incident you investigated. With some practice and planning, is it difficult to determine what questions will likely be asked of you before you go to court? Actually, it's not.
Defense attorneys aren't usually that unpredictable. The key is to stay a few steps ahead of them when testifying. That is done by practicing beforehand, and it can be done many ways. The most common is to work with an experienced officer and have him or her ask you hypothetical defense questions, based on your report. Don't spend hours doing this. A few minutes a day before you're scheduled to testify will be a huge help.
If you've never testified before or only have a few times, it's natural to be a little apprehensive. Just don't let some myths we've discussed throw you off. Remember to prepare by practicing your testimony. Also, regardless of how well you perform in court, remember that judges and juries make some astonishing decisions. Therefore, don't take it personally if your cases don't always have the outcome you had hoped. Like secretaries starting new lives as truckers, it happens.
Mike Grimes is a veteran police officer, author, and freelance writer now based in Indiana. His law enforcement experience has included Field Training Officer, background investigations, academy instructor, and evaluator. He is the author of two books one on budget travel and the other on time management, which are available on Amazon Kindle. He can be reached at firstname.lastname@example.org.