COURTROOM TESTIMONY Pt. 1

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LAW ENFORCEMENT TRAINING CENTER DEFENSOR

Title: Courtroom Testimony
Course: Criminal Investigator Course
Affiliation: A FLETA Accredited Academy

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TERMINAL PERFORMANCE OBJECTIVE

  • Main Objective: Students will identify issues that impact their credibility and professionalism while providing truthful testimony in a professional and credibly.

ENABLING PERFORMANCE OBJECTIVES

  1. Identify characteristics that make law enforcement investigators effective witnesses.

  2. Identify essential testimonial skills for law enforcement investigators.

  3. Recognize common techniques used to impeach witnesses during cross-examination.

  4. Identify subjects that should not be volunteered by a witness when testifying.

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INTRODUCTION

  • The principles covered in this course are relevant to any situation where an investigator testifies:

    • At trial

    • In suppression or preliminary hearings

    • Before a grand jury or administrative law judge

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INVESTIGATORS AS EFFECTIVE WITNESSES

  • Testifying in court is one of the most challenging yet crucial tasks investigators face in their careers.

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JURY EXPECTATIONS

  • Juries expect government witnesses to tell the truth consistently.

  • Justice can only be served when the truth is provided to the factfinder.

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TRUTHFULNESS IN TESTIMONY

  • The most crucial characteristic of any witness is truthfulness.

  • Failing to tell the truth not only constitutes a crime but also undermines the foundation of the criminal justice system.

  • Investigators must disclose all case details to the AUSAs, even if they seem inconsequential, to avoid surprises in court.

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THE IMPORTANCE OF HONESTY

  • Blindsiding the AUSA in court can affect not just the current case but potentially all future cases.

  • Witnesses who are impartial and truthful enhance the justice system immensely.

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RESPECT IN COURT

  • Treat counsel and the judge with utmost respect.

  • Avoid overly familiar terms; use the judge's title properly in discussions.

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PREPARATION IS KEY

  • Witnesses must be thoroughly prepared due to delays between arrest and trial which can fog memory.

  • Reviewing notes, reports, and case files is essential.

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PHYSICAL EVIDENCE

Notes on Crime Scenes

  • Visiting the crime scene and reviewing physical evidence can be beneficial for testimony and credibility.

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CREDIBILITY AND APPEARANCE

  • Dress for success

  • Witnesses’ credibility can be negatively impacted by their choice of clothing and grooming.

  • Dress conservatively and professionally for court.

  • Clean, conservative attire is essential. Dress appropriately, with attention to details.

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FOCUS ON NEATNESS

  • Maintain cleanliness:

    • Clean fingernails

    • Trimmed hair

    • Pressed clothes

    • Shined shoes

  • The goal is to fit in the crowd - not stand out in it

  • Every court will have rules as to what is permitted in terms of appropriate dress for all witnesses

    • Court rules will identify those items that are not permitted in court

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COURTROOM RULES

  • Avoid violating court rules regarding flashy attire and jewelry, including the prohibition of visible weapons and distracting items.

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WEAPONS IN COURT

  • Be aware that while state and local courts may allow firearms, federal courts do not permit firearms in the courtroom to avoid distracting jurors.

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Demeanor counts

  • Juries and judges use a witness’s demeanor in assessing the credibility (believability) of their testimony

  • Attitude during the oath-taking ceremony affects impressions.

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IMPORTANCE OF OATH

  • Respect the oath by maintaining body language and attention during its administration.

  • Eye contact with the administering officer is crucial.

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NONVERBAL COMMUNICATION

  • Avoid sending unintended messages through body language.

  • Maintain serious demeanor throughout the trial process—trials are significant.

  • The taking of the oath is an excellent opportunity for you to make a strong, credible first impression

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TAKING THE OATH

  • Respond to the oath with sincerity, maintaining eye contact with the jury to establish trust.

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SERIOUSNESS IN TESTIMONY

  • Transmission of messages via body language should be consciously controlled.

  • A convincing “Yes, I do” during oath-taking reinforces credibility.

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CONCLUDING STATEMENTS

  • Avoid combo of chuckling during proceedings, which can offend and undermine credibility.

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STRIKING A PROFESSIONAL IMAGE

  • Testify within a professional frame.

  • Maintain language clarity and avoid slang. “yeah.”“um,” “uh,” “you know.”

  • It’s O.K. to pause in silence and collect your thoughts

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SERIOUSNESS OF TESTIMONY

  • Avoid a “bad attitude.”

  • Avoid sarcastic responses

  • A clever, superior, or cocky attitude turns people off

  • A witness's attitude significantly influences how judges and juries perceive testimony.

  • Clarity and calmness are key to being convincing.

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ADMITTING MISTAKES

  • If an investigator makes a mistake, it’s crucial to acknowledge and correct it during testimony.

  • lf the subject matter of the mistake comes up during crossexamination or re-direct examination

  • The mistake should be admitted and corrected

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INFORM AUSAS ABOUT ERRORS

  • If unable to rectify mistakes in court, investigator must inform the AUSAs promptly.

  • The AUSA will decide what action The investigator must is appropriate

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IMAGE PROJECTION

  • Maintain a professional image when testifying, avoiding excessive joviality.

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CONTINUITY IN TESTIMONY

  • Ensure to acknowledge the weight of the testimony being presented; avoid humor and focus on seriousness.

EPO #2: Identify essential law enforcement investigator testimonial skills

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EFFICIENCY IN TESTIMONY

  • Listen, and then answer

  • Investigator should listen carefully to questions and think about their response before speaking

  • Answers must not be rushed, but unnecessary delays can lead to suspicion of honesty.

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AUDIBLE RESPONSES

  • Ensure audible responses and clarity in speech for accurate court reporting.

  • Variety in tone can enhance presentation effectiveness.

  • Head nodding to answer questions cannot be recorded by court reporter

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VISUAL DESCRIPTIONS

  • When discussing size or dimensions, offer clear audible descriptions that corroborate visual gestures.

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COURTROOM MICROPHONES

  • Be aware of courtroom equipment; don’t assume microphones are for amplification.

  • Many microphones are only for recording testimony

  • Answer the question that is asked. Do not add information that is not requested

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FOCUS ON THE QUESTION

  • This is a common tactic used to get you to say things that were not requested

  • Do not allow subsequent silence by defense counsel to lead you to believe that more information is expected

  • common tactic used to get you to say things that were not requested

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HANDLING OBJECTIONS

  • Stop speaking during objections, and wait for the judge's ruling before resuming testimony.

  • If an objection has been overruled,

    • ask counsel to repeat the question

  • lf the judge sustains the objection

    • say nothing further. Simply wait for the next question

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QUESTION CLARIFICATION

  • If unsure about a question, seek clarification without looking to the prosecutor for approval.

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Speaking to the judge

  • Address requests for clarification to the council who posed the question; avoid directing queries to the judge unless directly addressed.

  • Only address requests to refer to your notes or reports while testifying to the examining counsel

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AVOID JARGON

  • Use plain language and avoid police jargon to ensure comprehension by all present.

    • “l frisked him.”

    • “l did a protective sweep.”

    • Speaking in plain terms is very important

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COMMUNICATION EXAMPLES

  • Here’s an example from a federal court on overly complex police jargon that led to misunderstandings.

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SIMPLE LANGUAGE USE

  • Explain actions and observations simply for better understanding.

  • Don testify as to what others observed

  • Let others tetify for themselves

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RESPONDING TO QUESTIONS

  • Only offer opinions when expressly asked, providing a rational basis if available.

  • Distinctions between "I don't know" and "I don't recall" for clarity in responses.

  • "I don't know"

    • Means that you never knew the information

  • "I don't recall"

    • Implies you once knew the information but cannot recall it

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EYE CONTACT IMPORTANCE

  • Maintaining eye contact is vital to establish respect and credibility.

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AVOIDING VERBATIM RECITATIONS

  • Refrain from providing memorized or verbatim testimony to maintain authenticity.

  • Maintaining eye contact with those you address

  • You provide deference to the jury while simultaneously establishing your own credibility in their eyes

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JURY FOCUS

  • Address the jury directly when providing testimony; jurors are the ultimate decision-makers in the trial.

  • NOT 100% of the time

  • No one wants to see or hear a robot witness

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ENGAGING THE JURY

  • For critical points, establish direct communication with the jury to enhance testimony credibility.

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PREPARATION METHODS

  • Prepare without memorization; aim for a natural explanation of events as they occurred.

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LIMITATIONS ON NOTES USE

  • Generally, witnesses cannot read directly from reports or notes while testifying.

  • check with the SJA about whether to bring reports or notes to trial

  • can be used to impeach a witness’s in-court testimony

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IMPEACHMENT EXAMPLES

  • Discrepancies between witness testimony and initial reports can lead to impeached credibility in court.

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REFRESHING MEMORY

  • Present memory can be “refreshed” during testimony using prompts; items used must not be revealed to jurors.

    • The rule is called present memory refreshed.

    • Sketches, photos, physical objects, reports, notes, and even documents prepared by non- LEOs can be used

  • When a witness’s memory is refreshed, the witness then testifies from memory. The report or item that was used to refresh memory is neither read nor given to the jury