Top Ten Testimony Tips
I am going to assume that since you clicked onto this blog you either have never testified or are looking to refresh yourself before once again taking the big leap into the courtroom cauldron. The cross examination is your Goliath. The courtroom is your battle ground. Here are your tactical tips and truths:
- You Probably Won’t Testify. The majority of the time you are called to court, you will NOT testify. If you are experiencing anxiety around the thought of testifying – and most people do – take that anxiety out back and shoot it. 95% (or more) of criminal cases settle by way of plea bargain, deferment, or other type of non-trial disposition. These dispositions can even occur after a trial has started. Don’t get unnecessarily rattled.
- You Know More Than They Do. Defense attorneys like to convey a sense of authority and an upper hand during cross examination. This is designed to set you back on your heals and put you in a defensive posture. More than likely you are going to be asked to testify regarding some contact, incident, mission, investigation that you performed. You are the authority when it comes to what you know, what you experienced and what you memorialized in your reports, no one else in that courtroom. So don’t be buyin’ the intimidation they are sellin’. Put your badass on and take a seat.
- No One Looks At Your Shoes. I don’t really believe this one. In fact, I should call this one, “EVERYONE IS LOOKING AT YOU!” When I was practicing law, I was in the courtroom every day for one reason or another and I was a stickler for having my shoes match my purse and belt and/or all other accessories and my nail polish had to match my shade of lipstick. Are you getting the picture? People all make subconscious decisions whether you are credible. You must look like you know what you are doing and talking about even if you are doubting yourself on the inside. In the face of a well-spoken, prepared, clean (yes, I had to say it – I could tell you stories!) and professional appearing witness, the jury is anxiously waiting to hear what you have to say. If you are on duty, stay in your uniform when you come to court. If you are not on duty, then wear a suit jacket or at the very least, a sports jacket with a tie. This sends a message to the jury and the judge that you respect their time and expect their full attention and you take the court proceedings seriously.
- It’s Not About Winning. The attorneys will be caught up in the mindset of “winning” and so that spills over onto their witnesses. Don’t take on that responsibility. Make your testimony be about the nature and facts of your observations and practices. This involves thinking clearly and speaking well. It is a common belief that the prosecution is always right and always on the side of true justice. This is in fact not true. See, Adam Toledo Shooting. Your testimony should be as if a neutral third party put you on the stand, i.e., the Court.
- You Do Not Have to Have an Answer For Every Question. It is a common misconception that once you are sworn in on the witness stand, you must answer each question. This is an attribute of human nature defense attorneys take advantage of. They may in fact be fishing for information (which is unwise on their part) or working towards a factual set-up, which I get into in my seminars. Suffice it to say for this blog, that it is perfectly fine to release yourself from answering every question perfectly and knowledgeably. As Plato said, “Wise men speak because they have something to say; fools because they have to say something.”
- Don’t Cram the Night Before. This goes without saying. Did it ever really work in High School or College? You will retain more information and have better recall if you take your time in preparation and get a good night’s sleep before you testify.
- Pay No Attention to the Antics. The cross-examination process is inherently adversarial. This can create an atmosphere of high levels of stress that you must be aware of and prepared to arm yourself against. This is not unlike high stress scenarios that are part of your tactical training as an officer. As you know, if you stay focused on what you know, keep breathing and have a big-picture perspective of what is happening in the courtroom, you will weather the chaos well.
- Tell the Truth. This should be obvious, however it is common that when faced with the stress of cross-examination and a misplaced belief that they must “win” a witness may “stretch the truth” or embellish the facts. Resist the temptation if it comes. You don’t know what the defense attorney knows. If you must disclose an embarrassing or less-than-desirable fact, the jury will love you for your honesty.
- Just the Facts. In spite of the modern-day courtroom dramas all over the media, most testimony concerns the probative facts contained in your reports. It’s just that simple. Know your report, and stay focused on what it says.
- You Don’t Have to Be Friendly. Everyone wants to be liked. It may be particularly important to you that the jury like you and find you credible. This is a good thing, however too much smiling and too much of an effort to please may compromise your credible. Keep it real.
I hope these tips help you navigate the battleground of the cross examination.