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Criminal Evidence 6th Edition Norman M. Garland Chapter 15 How to Testify Effectively
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Officer’s Role o During the investigation of a crime, officers interview witnesses, preserve the crime scene, and collect physical evidence—all of which is essential in proving a defendant guilty beyond a reasonable doubt.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Single Most Important Consideration in Testifying o Testify truthfully.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. What to Do Before the Trial o Notify superiors of the notice to appear as a witness. o Make necessary arrangements to be available on the trial date, including rescheduling shift assignments or vacations. o Provide all the facts of the case to the prosecutor, even facts revealing weaknesses or problems in the case. o Discuss all facts surrounding the execution of a search warrant, arrest, and interrogation of the defendant with the prosecutor.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. What to Do Before the Trial o Become completely familiar with the facts of the case. o Ascertain from the prosecutor what the focus of testimony will be. o Check the evidence locker to assure the evidence is available and prepare it for proper presentation. o Solicit advice from senior and superior officers. o Attend a trial to observe other officers testifying as witnesses.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Police Attire in Court: Some Basic Considerations o Wear to court what an officer wears to work. o If the officer wears a uniform to work, then he or she should wear it to court. o If the officer is a detective or in some other unit that does require that uniforms be worn, then business attire is appropriate for court. o Some officers who come to court on their days off may also choose to wear a suit instead of their uniform because they are coming to court in their personal vehicles.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Police Attire in Court: Some More Considerations o Many prosecutors suggest that the officer appear in court in civilian clothing rather than in uniform. o Their suggestion is based on the idea that jurors tend to associate the officer in uniform with the traffic citations they may have received. o To some jurors, the uniform and badge may represent authority that they resent and could affect the weight given to an officer’s testimony.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Rule on Witnesses or Witness Sequestration Rule o Witnesses are excluded from the courtroom during a trial, to prevent one witness from hearing another witness’s testimony. o This is known as the rule on witnesses or witness sequestration rule. The officer should determine before going into the courtroom whether the witnesses have been excluded, in order to comply with the judge’s exclusion order.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Rule on Witnesses or Witness Sequestration Rule: Continued o If the witnesses have been excluded and the officer goes into the courtroom and sits down, the officer may be severely reprimanded by the judge; or the officer’s presence, unless discovered immediately, may be the cause for a mistrial. o The officer may be asked to wait in a room with other witnesses, in an officer’s waiting room, or out in the hallway outside the courtroom. o It is important that the officer at no time discuss the nature of his or her testimony with other witnesses.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Conduct Before and During Court Session o If the witnesses are not excluded from the courtroom, the officer may gain many important points on how to, or how not to, testify effectively by listening to the trial as it progresses. o The officer should observe the prosecutor’s direct examination, the demeanor of the judge, and the defense attorney’s cross-examination.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Conduct Before and During Court Session: Continued o As a spectator, the officer will be able to judge, along with the jury, which witnesses are persuasive and what qualities the officer wishes to emulate while on the stand. o The officer should remain in the immediate area in order to be ready to testify when needed.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Conferring with the Prosecuting Attorney o Any conference with the prosecuting attorney concerning the officer’s testimony should take place prior to the trial date. o The officer should bring his or her own copies of reports and should not borrow the prosecutor’s file to review, which could disturb the prosecutor.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. On the Witness Stand o Common sense dictates that the officer will want to appear as professional, natural, and personable as possible before the jury, and should avoid robot-like mannerisms that signal to the jury that the officer is not experienced or comfortable on the witness stand or might have something to hide.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Voice and Expressions o While testifying, the officer should speak into the microphone, if there is one, using a normal conversational tone and level. o The officer should avoid sentence fillers, such as “uh,” “well,” “you know,” or “like” because, when used in excess, these words can be annoying to the jury and can signal that the officer is uncertain about an answer, even if that is not the case.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Profanity and Vulgarity o Profane or vulgar terms must be avoided while testifying, unless the officer is repeating the exact words used in a conversation. o When the officer must quote exact language for the jury to hear, the officer should tell the jury that he or she is in fact quoting the exact language used.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Jargon: “211 in Progress, Handle Code Three.” o Police jargon, as well as the language of criminals that has been adopted into the officer’s vocabulary, should be avoided or else thoroughly explained when testifying otherwise the jury will lose the meaning of the officer’s testimony.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. References to the Accused o The officer’s voice should avoid carrying an inflection that shows prejudice against the defendant. o When identifying the defendant for the first time, the officer should look to the defense table where the defendant is sitting, identify the defendant, and describe what he or she is wearing. o The officer should avoid pointing at the defendant because it is accusatory, and the court reporter cannot reflect gestures such as pointing on the record.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. When the Officer Forgets Details of the Case o Once the officer has reviewed the report, he or she must be able to truthfully say that his or her memory is refreshed. o If the officer is unable to remember, the officer should simply state, “I do not recall at this time, but I did write that information in my report. If I am able to review my report, which I made when the facts were still fresh in my memory, I’m sure it will refresh my memory.” o Then, when the officer answers questions, his or her testimony is completely truthful.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Don’t Forget Your Report! o Any document that the officer used to refresh his or her memory while on the stand may be examined by the defense attorney. o If the officer uses a pocket notebook for this purpose, the defense attorney may peruse the entire notebook.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Cross-Examination o Defense attorneys differ in their approach to witnesses upon cross- examination. o Some defense attorneys assume a very friendly attitude toward the witness. o Some defense attorneys assume an extremely adversarial attitude.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Watch Out! o Ask for clarification of ambiguous or misleading questions. o Remain composed, even if the prosecutor assumes an adversarial attitude. o Avoid becoming emotionally involved to the point of doing or saying things that are detrimental to the prosecution of the case. o Never become engaged in a verbal altercation with the defense attorney.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. After Testifying o After completing both direct and cross- examination testimony, the officer should make certain that he or she is permanently excused before leaving the courthouse. o Many times the prosecutor or defense attorney may recall officers for further testimony, so the officer will need to ascertain whether or not he or she will be called again to testify before leaving.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Review the Case After Verdict o Whether an acquittal is granted or a conviction obtained, the officer should review the case to determine how to improve his or her investigation and courtroom techniques.
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