The Art of Law Enforcement Testimony: Fine Tuning Your Skills as a

The Art of Law Enforcement Testimony:

Fine Tuning Your Skills as a Witness

By Michelle M. Heldmyer

Attorney-Advisor (Instructor), FLETC OCC

Testifying is not natural – even for the most experienced law enforcement

witness. Relating information from a witness stand is neither conversational nor

comfortable. While some people are more content than others as the center of

attention, few feel at ease while being judged and attacked on such personal

issues as their job performance and their credibility. Memories of past

unpleasant courtroom experiences can increase stress. Adding to the negative

psychological impact of the experience is the feeling of helplessness; knowing

you are not in control of the courtroom, that you must simply do what you are

told without argument, makes most people feel powerless and frustrated.

But the good news is, testifying can be a positive, satisfying and (almost) fun

experience. With a few additional skills and some groundwork, you can be

effective and entertaining on the witness stand without sacrificing the most

important aspect of your testimony: the truth.

Prior to Testimony: Preparation is Key

Testimony is like most any other experience in one way: the more prepared you

are, the better you will perform. Preparation will also relieve some of the

nervousness felt prior to court, which in turn will make you a better and more

reliable witness. Past testimony, whether positive or negative, can and should

help relieve stress, if you can be objective in your evaluation of the experience.

Know the Facts

Preparation entails two key components. The first is a thorough review of the

facts of your case. Do everything you need to do to ensure your memory peaks

the moment you take the oath. Read the case file, review the evidence, visit the

scene – remember, you must be the smartest person in the courtroom on the facts

about which you are testifying. A defense attorney should never know the facts

or the contents of your reports better than you do. This may sound patronizing,

but a surprising number of law enforcement witnesses are tripped up by defense

counsel on the details of their own reports and investigations.

Meeting with the Prosecutor

The second key component of preparation is to meet with the attorney who is

calling you as a witness. For criminal prosecutions, of course, this will be the

prosecutor. Prosecutors usually have a number of other priorities before trial, so

do not expect them to schedule a meeting. You may need to make the first call.

The prosecutor’s role in the meeting is to listen to your facts, choose the material

facts to include in your testimony, and give guidance as to the best way to

present those facts, given various legal and strategic considerations. The

prosecutor will not tell you what to say; she will tell you how to say it. She should

also answer whatever questions you may have so that you become more

comfortable and familiar with the events about to transpire in the courtroom.

Therefore, in addition to the necessary review of facts and exhibits, consider

asking these important questions:

• How does my information fit into the prosecution’s theory of the case?

• Which are the key questions you will ask during direct examination?

• What predicate questions will you ask to introduce evidence?

• What type of evidence presentation system will be used?

• Has any evidence been suppressed, or has the judge ruled any evidence or

topic inadmissible?

• Do you know of any other information you do not want me to mention, or

you want to save for redirect examination?

• What is the defense to the charge, and how might that be advanced during

my testimony?

• Do you know of any information, evidence, or witness that contradicts my

testimony?

• How does this judge behave during trial? Does he ask questions of

witnesses? Is she generally rude or polite? Does the court allow jurors to

ask questions? (this is a growing trend)

• What is the defense attorney’s style?

• Are you aware of any impeachment materials which may be used during

my testimony, such as my personnel file, divorce pleadings, or social media

accounts?

• Has the defense team requested or received any such personal information

about me?

• What story do I need to tell?

Direct Examination: Be a Storyteller

Of course, your “story” is not one of fiction. But it does need to be as entertaining

as the facts and circumstances allow. Even the most impactful facts are

worthless if no one is listening. Being a person to whom others want to listen is

itself an art, and being that person in the stilted environment of a courtroom can

be even more challenging. But it can be done.

Direct examination is the framework of your story, meaning that you must be

directed through your testimony by a series of open-ended questions. Part of

your success will be dependent upon the abilities of the questioner. However,

meeting in advance and becoming familiar with the questioner’s style and goals

for your testimony will help both of you effectively communicate facts to the jury.

Credibility

To be an effective witness-storyteller, you must be credible. At the heart of

credibility is truth. Law enforcement witnesses must be fair, objective and

impartial throughout all their interactions in court. They must value truth above

any desire to see a particular side prevail, and the judge, jury and parties should

be made to feel that from them. Impartial witnesses refrain from exaggeration of

any kind. Credible witnesses do not lie, attempt to “gloss over” any unpleasant

fact or subject, tell a half-truth, or omit a material fact.

Not only can lies end an officer’s testimony, they can also end his career. Lies on

almost any subject – told before or during testimony, under oath or during casual

conversation, even during previous divorce proceedings or on social media –

could be used to impeach an officer and damage her case. Defense attorneys are

becoming adept at researching officers’ personal pasts, their social media

presence, and their personnel matters in search of ammunition. Remember that

prosecutors are not your legal representatives. They have an obligation to provide

to defense counsel any information which could be used to impeach the

credibility of any witness. This includes false or inaccurate information provided

during trial preparation, even if it occurs in the privacy of the prosecutor’s office.

Assuming no such impeachment evidence lurks in their files, law enforcement

witnesses generally begin their testimony with the assumption of credibility. It

may not appear that way in light of recent negative press, but most people still

respect law enforcement witnesses. They find your profession interesting and

they want to be a part of the action. Consider the popularity of cop shows

throughout the decades of television. Most of those shows depict honest, hard-

working and intelligent law enforcement professionals, and viewers want to relate

to them. Innately, citizens want to trust law enforcement officers, given the

amount of power they wield as well.

Thus, jurors often relax somewhat from their truth-detecting vigilance when an

officer takes the stand. They expect the officer will tell the truth. But when

expectations are high, the potential fall- if the officer fails to meet expectations-

is long and uncomfortable. A single witness usually cannot win a case, but can,

in fact, lose one.

People judge credibility on many levels. What people say and how they say it, as

well as their mannerisms, attitude, facial expressions, even general appearance

all factor into the assessment process. Remember, judges and juries usually have

a very short period of time to evaluate a witness, so every little factor presented

to them becomes larger in importance than perhaps it should. Don’t

underestimate the importance of the “little things,” like how you take the oath,

your posture, or attention to professional appearance. Jurors watch everything,

and every detail could affect their perception of trustworthiness, on either a

conscious or unconscious level. For example, jurors may not believe you are

careful in preserving evidence when you have visible food stains on your uniform;

slouching witnesses do not display confidence in the facts to which they are

testifying.

To maintain credibility, officers should appear calm, patient and mature

regardless of the behavior of others, including defense counsel and the judge. In

other words, officers should “be the adult” in every relationship that develops in

the courtroom. Body language, tone, and temper should remain the same

regardless of who is addressing you. While you are not technically in charge in a

courtroom, your presence should have an air of calm authority.

Avoid careless use of absolutes such as “always” and “never.” If you don’t know

an answer, or understand the meaning of a word, you must say so directly and

confidently: a simple “I don’t know” is an excellent answer. If you say it with

confidence, the jurors won’t be concerned that you don’t know the answer. Never

attempt to bluff or guess your way through any answer. Pride and

embarrassment undermine credibility.

Telling the Story

Direct examination is your opportunity to tell your story in a way that engages

and captivates the courtroom. It is essentially adding dimension and detail to

the four corners of your report. Consider how you would describe your

experience to your spouse or child without police jargon or technical terminology.

In a successful direct examination, jurors will imagine themselves at the scene

with you, and they will form a bond with you. To do that they need detail.

Telling your story chronologically, using thorough descriptions of places and

people, will greatly assist listeners in picturing themselves with you – a vital step

in the bonding process. Instead of saying, “we entered the building through the

front door..,” you could articulate the general appearance of the building, who

was there with you, how long it took to walk to the door, whether the door was

open, closed, or locked, or how much effort it took to open. Describe colors,

shapes, sizes and distances. While these details may not seem important to the

case, they are crucial in allowing the listener to imagine the scene. Do so

carefully, however, to ensure accuracy. Practicing your description with the

prosecutor before testimony will help you stay out of trouble on cross

examination.

Photos and videos are also great descriptive tools when used properly. If an image

is worth admission into evidence, it is also worth more than a cursory display on

the juror’s screen. Photos and videos introduced at trial should be explained

through the eyes of the witness when possible – “this is what I saw when I opened

the door…” Not only will these imageries help you to bond with the listener, they

also promote credibility and trust because they corroborate your testimony.

Before meeting with the prosecutor, you should examine the available images

and be ready to recommend which ones best help your narrative.

Every witness is different, and each brings their unique personality to the stand.

Anyone facing the prospect of testimony should honestly and objectively evaluate

themselves, their personalities and their strengths and weaknesses as a

presenter. Personalities can and should shine through, because jurors want to

know you as a person. No one should attempt to be something they are not.

Those who are quiet in nature should not attempt to appear aggressive, and vice

versa. Jurors could translate this behavior as insincerity. Every personality type

has value. Accentuate your strengths.

Work on your presentation weaknesses, too. For example, if you are one to use

“word whiskers” such as “I guess” or “I think,” or insert “ummm…” or “so…” into

sentences, work on eliminating such habits in your everyday conversations.

Consider your voice and personal way of communicating. Do you speak softly or

loudly? Do you use inflection or are you monotone? Do you have a natural smirk,

or smile at inappropriate times? Even more important, if you tend to easily anger

or take offense, it may be time for that meditation class. More on emotions later.

As you testify, make periodic, quick eye contact with jurors (never stare at a jury,

they hate that). Jurors are often stoic and hard to read, which is normal and

should not concern you. But they also may reveal clues to their feelings and

receptiveness in their body language. Look for gestures, in the form of slight nods

and smiles, or leaning-forward, arms-open attentiveness. If you see a different

scene from the jury box, you need to adjust something. Frowns, closed posture,

or indications that they do not understand should prompt you to alter your

strategy. The problem could be simple to fix; for example, jurors can’t hear you

well and you need to speak up. If the issue appears to be a credibility issue, a

quick self-evaluation of your tone, attitude and posture may be necessary. On

the other hand, you may simply be involved in a bad case, and cannot impact

the jurors’ attitudes with a self-correction. It happens. Change what you can,

and leave the rest to the prosecution team.

At the end of direct examination, jurors should feel as if they were there with

you, chasing the bad guy through traffic, examining the crime scene, collecting

evidence, spending hours poring through documents. Jurors should have

connected with you, and if they did, you will reap the benefits during cross

examination.

Cross Examination: The Virtue of Patience

If you have successfully bonded with the jury and gained their trust, you will

begin cross examination with jurors wanting you to succeed. They may also feel

personally offended if defense counsel attacks you. Beginning in this position

gives you a decided advantage over defense counsel. If counsel has been paying

attention, he will know this, and should tread lightly until and unless he is

successful in undermining your credibility. In the process, he may be nice to

you, and pretend to be your friend. He is not your friend.

Tactics and strategy vary greatly from case to case and attorney to attorney, so

ask questions and prepare for your specific situation, as discussed above. Not

all cross examinations are angry or even unpleasant. If you have information

favorable to the defense, they may be downright jovial. Generally speaking,

however, the rule is this: the worse you hurt their client, the harder they will be

on you. Please remember it is not personal. They do not hate you, and often they

don’t believe you performed your job poorly. They simply have a job to do.

Remembering that will help you hold your temper, which is crucial to surviving

cross examination with your credibility intact.

Feeling anger, frustration, annoyance, impatience, discouragement or self-

condemnation will show on your face and in your body language, and very

quickly will shatter your credibility. Control your emotions until you have

completed your testimony. Take a quiet, deep breath or a sip of water if you need

a moment.

You can help yourself stay in control by treating defense counsel as your peer,

not someone to be feared or scorned. They are not better or more important than

you are. Greet them politely when they first address you. Also, consciously set

your own pace and voice volume in answering the questions – do not let counsel’s

speed or inflections dictate your own. In fact, taking control of the tempo of cross

examination will help shift the power to you.

Technique and Tempo

During cross examination, most questions asked are leading questions –

questions which imply the answer in the question (i.e., “Isn’t it true that…” or

“You said…, didn’t you?” or “Would you agree with me that…?”) As opposed to

direct examination when your answers are detailed and descriptive, cross

examination answers should be short and to the point. Your tone, emotional

state and attitude should not change, but your technique should. Answer leading

questions with as few words as possible. Example:

“Mr. Smith’s head hit the cement when you tackled him to the ground, didn’t

it?”

Assuming all that is true, you may be tempted to answer:

“I tackled Mr. Smith because he tried to punch me!”

However, the better answer is:

“Yes, it did.”

This answer does several things. First, it illustrates your commitment to truth.

Second, it shows the jury you are taking responsibility for your actions and not

attempting to rationalize. If you are defensive about the question, the jury will

assume you did something wrong.

Third, the first answer example, “I tackled Mr. Smith because he tried to punch

me!” could buy you many more unpleasant questions on that topic. Counsel will

likely move to the next topic if you simply agree to a true statement. But arguing

and rationalizing provides more fodder to make you look bad:

“Officer, are you testifying, under oath, that smashing and bloodying my

client’s head on cement, causing a gash which required 40 stitches and still

causes him to suffer from frequent migraines and ringing ears, was a

rational response to a mere attempted punch, even though he was unarmed,

you are bigger than he is, and other officers were close by to assist you?”

You have no good answer to this question. Certainly, these combative questions

could be asked regardless of your answer, but they will appear far less justified,

and you will have the advantage, if you did not start the fight.

Cross examination questions are often long and complicated. Do not simply

agree because most of the question is correct. Listen to every part of the question,

and if any part of the question is incorrect, your best answer is, “No, that is not

correct.” This answer gives the questioner two choices. She can simply move on

to the next question, or try to figure out what part of the question was incorrect.

If the questioner does the latter, she will likely need to ask you a non-leading

follow-up question, such as, “What part of that was not correct?” This is an open-

ended question that gives you the opportunity to repeat key parts of your

testimony and thus reinforce facts with the jury. Because repetition is generally

discouraged in court, these opportunities can be rare, so pounce on them if

offered. Consider this exchange:

Q: “Mr. Smith’s head hit the cement when you tackled him to the ground,

didn’t it?” (leading question)

A: “That is not correct.”

Q: “Are you saying his head did not hit the ground?”

A: “No, ma’am, I am not saying that.”

Q: “Then what are you saying?” (open-ended question)

A: “When the defendant broke free from Officer Peterson and took off

running south on Main Street, I chased him, just a few feet behind, yelling

Stop! Police! The defendant did not stop, but kept running until he hit a

pedestrian on the sidewalk and they both fell to the ground. It was this fall

that caused the defendant’s head to hit the ground.”

You have now repeated important testimony that you likely already stated at

least once during direct examination. Repetition of the same facts makes them

more concrete, memorable and credible to the juror’s minds.

In nearly all cross examinations, defense counsel will concentrate on one

particular point at a time, and ask a series of questions to build to that point.

Most of the time, you can figure out what the point is. Resist the temptation to

jump to that point and try to hit it head-on:

Q: “Officer, you were trained at the Academy on use of minimal force during

a suspect’s arrest, weren’t you?

A: “I didn’t have to use minimal force – I used the proper amount of force

against the defendant because he ran from me and I had no choice!”

Instead, take it one question at a time. “No, sir, that is not correct” is a great

answer, particularly for confrontational questions, as it begs a follow-up open-

ended question. But you may also choose occasionally to give a longer answer or

make a subtle, polite correction, which is a good choice if the questioner has

made a simple mistake or you want to appear cooperative:

A: “No, sir, I received use of force training at the Police Academy.” (controls

tempo, and may also require open-ended follow-up question)

A: “No, sir, I was not trained at the Academy. I received training at the

Federal Law Enforcement Training Center, where I received legal and

practical instruction on use of force, not minimal force, and on arrest

techniques.” (defense counsel appears unprepared or uninformed)

If the questioner is careful, the correct and expected answers to a series of

questions leading to a point will be simply, “yes” or “no.” But that does not mean

you must utter only “yes” or “no” every time. You can control tempo and content

by occasionally giving a slightly different answer than the root of the question.

For example, assume you have testified on direct examination about having

arrested a liquor store robbery suspect at a park about 50 minutes after the

robbery. Defense counsel claims you arrested the wrong man, and wants to

emphasize the time difference between the robbery and the arrest. It might go

like this:

Q: “Officer, you are acquainted with the location of Oscar’s Liquor Store,

aren’t you?”

A: “Yes.”

Q: “Would you agree that Oscar’s is located about ½ mile from Copland

Park?”

A: “Yes.”

Q: “And the robbery occurred at Oscar’s at about 1:30 a.m., correct?”

A: “Yes.”

Q: “But you didn’t see my client, Mr. Johnson, at Copland Park until 2:15

a.m., correct?”

A: “Yes.”

Q: “If a person walks average speed, wouldn’t he arrive at the park at about

1:40 a.m.?”

A: “Yes.”

Q: “And 1:40 a.m. is 50 minutes earlier than when you saw Mr. Johnson at

the park, would you agree?”

A: “Yes.”

Q: “Would you also agree with me that you don’t know where Mr. Johnson

was for at least 50 minutes before you went to the park?”

A: “Yes.”

In this example, defense counsel has established a tempo, and you have agreed

with all he said. By doing this, you have lent some credence to counsel and to

his defense. Instead, you may want to change up some of the answer, so as to

disrupt tempo or to discredit counsel. Here are the same questions, but with a

sample tempo-disruptive answer to each:

Q: “Officer, you are acquainted with the location of Oscar’s Liquor Store,

aren’t you?”

A: “I am, because that store has been located in my regular patrol area for

the past 10 years.”

Q: “Would you agree that Oscar’s is located about ½ mile from Copland

Park?”

A: “No, I actually measured the distance as part of my robbery investigation.

The exact distance is .68 miles.”

Q: “And the robbery occurred at Oscar’s at about 1:30 a.m., correct?”

A: “According to the security camera logs, the robbery began at 1:26 a.m.

and ended at 1:34 a.m. when the defendant fled from the store.”

Q: “But you didn’t see my client, Mr. Johnson, at Copland Park until 2:15,

correct?”

A: “I can’t say the exact time I saw him first, because I saw several people

at the park and it took me at least 5 minutes to positively identify him from

the description I was given by the liquor store manager.”

Q: “If a person walks average speed, wouldn’t he arrive at the park at about

1:40 a.m.?”

A: “I can’t really say, because that would depend on several factors. People

walk at different rates of speed, and there are a few different routes he

could have taken.”

Q: “And 1:40 a.m. is 50 minutes earlier than when you saw Mr. Johnson at

the park, would you agree?”

A: “I would say it is approximately that, yes.”

Q: “Would you also agree with me that you don’t know where Mr. Johnson

was for at least 50 minutes before you went to the park?”

A: “I agree that I do not know where the defendant was between the time

he robbed the store and when I saw him at the park, but I can’t agree that

the time was ‘at least 50 minutes.’”

A few of these answers, interspersed with the simple “yes” answers, will stop

defense counsel’s dictation of tempo and prevent an inadvertent vouching for the

credibility of the defense’s story. They also keep you active, and perhaps

dominant, in the narrative and emphasize the thoroughness of your

investigation.

Personal Knowledge

Errors most often made in answering cross examination questions stem from

one problem – not listening carefully to the question. Agreeing to “facts” of which

you have no personal knowledge is commonplace. Attorneys at trial are not

under oath, and a combination of the stress of trial and personal interpretation

of evidence (maybe a little bit of clever wording, too) can create false assumptions

of facts in the premise of questions. The solution to all of these issues is simple.

Listen, and do not agree to anything you do not know from your own personal

knowledge.

Having personal knowledge of a fact means you experienced the event – you

personally participated, actively or passively. You heard it, saw it, touched it,

tasted it, or smelled it with your own senses. The issue of personal knowledge

can arise whenever defense counsel wants to use your testimony to make a point

favorable to the defendant. It can happen during general questioning about

investigative events or about defendant’s prior statements.

Your testimony about the investigation will typically entail a mix of information

favorable to the prosecution and, to a lesser degree, information favorable to the

defense. Of course, you should expect the defense to isolate facts favorable to

them, and ask specifically about those facts. For example, if the liquor store

owner’s description of the robber was generally correct, but he mistakenly

described the defendant to you as wearing a red jacket, defense counsel would

likely hit that issue and move on:

Q: “You obtained a description of the robber from the store manager, didn’t

you?”

A: “Yes, I did.”

Q: “And the manager told you the robber was wearing a red jacket, correct?”

A: “Yes.”

Q: “When you encountered Mr. Johnson, wasn’t he wearing a yellow

jacket?”

A: “Yes, it was yellow.”

That ends the jacket discussion, as defense counsel got what she wanted from

you – to cast doubt on the identification of her client. She can now use this fact

in her closing arguments to support acquittal.

This question sequence is also the best (or perhaps the “least bad”) outcome for

your side of the courtroom as well. Because a mistake was made and you have

personal knowledge of the error, your job is to minimize the time spent on the

issue by giving short, pinpoint-accurate answers without argument or attempted

rationalization. Any necessary clarification can come during redirect

examination.

However, if you do not have personal knowledge of the manager’s description

because his statement was taken by another officer, or you simply received a

suspect description over the radio, you should not be the witness to affirm the

error. Defense counsel knows this, and is not likely to hit the issue bluntly. The

questioning could be subtle:

Q: “Isn’t it true that, when you encountered Mr. Johnson, he was wearing a

yellow jacket?”

A: “Yes, he was.”

Q: “But the robber’s jacket was red, so you should have been looking for

someone in a red jacket, correct?”

Q: “Would you agree that you should not have been looking for anyone in a

yellow jacket?”

Q: “It was a mistake to arrest someone wearing a yellow jacket, wasn’t it?”

Defense counsel is attempting to affirm her version of the manager’s description

through you, and therefore poses a question that presumes the manager’s

statement as fact. But regardless of whether the manager was correct, you do

not have personal knowledge of the manager’s statement. The tempting path is

just to agree, perhaps because dispatch told you to look for a man wearing a red

jacket, or perhaps you read the report that said the jacket was red.

But you need to correct the premise of the question before attempting to answer

it. If you do not, your testimony and the court record will suggest knowledge that

you do not possess. It may also imply that you were present when the manager’s

statement was taken. The premise may even be incorrect. Consider the

possibility that the officer who talked to the manager wrote “red” in his report,

but would testify that the manager more thoroughly described it as a red and

yellow jacket, or “reddish,” or some other nuanced description.

Either way, you may not testify to hearsay, and you may not testify to something

of which you have no personal experience or knowledge, regardless of how sure

you are that it is true. You are only allowed to testify as to your personal

understanding of the situation, and how you proceeded based upon that

understanding. For example, you can testify that you looked for a man in a red

jacket because that was the description dispatch gave you, or because another

officer told you the robber was a man in a red jacket. But you must make clear

first that you are merely explaining your conduct subsequent to receipt of

information, without affirming the information as true.

Thus, any of these answers will suffice, depending on the phrasing of the

question:

• “No, I can’t agree that’s correct.”

• “No, I believe I arrested the right man.”

• “I didn’t speak to the manager, and I don’t know whether he spoke to law

enforcement.”

• “I have no personal knowledge of what the manager may have told other law

enforcement officers.”

• “I have no personal knowledge of what the manager said, if anything, prior to

my arrest of the defendant.”

• “I didn’t personally speak to the manager, so I can’t testify to what he may

have said to anyone. However, I was looking for someone matching the general

description I had been provided by dispatch.”

These answers accomplish your goal of signaling to the jury that whatever was

your understanding of the color of the jacket was just that – your understanding,

and not a statement of fact. This level of care should be taken whenever a

question is posed that requires acceptance of a “fact” that you cannot verify from

your own personal knowledge.

The prosecutor may try to assist you with these questions as well. If, after the

question is posed, the prosecutor objects to the question based upon either

“improper predicate” or “assumes facts not in evidence” (or some derivation of

those objections), this may be a signal to you that the prosecutor believes you do

not possess the requisite personal knowledge to answer the question. You should

then consider carefully whether to attempt a direct answer, or whether one of

the alternatives would be legally appropriate.

Defendant’s Statements

Statements made prior to trial by defendants can pose similar challenges for you,

but they also pose special problems for defense counsel. The rules of evidence

generally allow these statements to be offered for admission at trial only by the

prosecution, because they are considered statements of a party-opponent.

Naturally, if the statements are self-serving and not at all helpful to the

prosecution, the prosecutor will likely not offer them into evidence. But often,

prosecutors will offer a statement into evidence even if part of the statement is

consistent with the defense. Prosecutors do not want juries to think they are

hiding valuable information, and juries want to hear whatever the defendant had

to say about the charged criminal activity. Also, if the prosecution offers only

part of a statement into evidence, the rules of evidence generally will allow for

the introduction of the remainder of the statement by the defense, unless another

rule would mandate against some of the statement’s contents.

Defense counsel may want the jury to hear the defendant’s prior statements too,

if they bolster the defense’s theory of the case. If the statements are offered by

the prosecution and you have testified about them on direct examination, cross

examination may consist of merely repeating the parts favorable to the

defendant. If so, answering the questions will not be tricky, you just need to

ensure the questions contain an accurate account:

Q: “When you arrested Mr. Johnson, he told you he had just come from his

home, where he had been binge-watching Netflix, then showered and

dressed to meet his girlfriend at the park, correct?”

A: “That’s essentially correct, though those were not his exact words.”

Q: “Would you agree that Mr. Johnson’s home is about a mile in the opposite

direction of Oscar’s Liquor Store?”

A: “I would say that the liquor store is west of Copland Park, and the

defendant lives about a mile southeast of the park.”

So far, so good.

Defense counsel will want the jury to believe the defendant’s version of the facts.

Chances are, however, when the defendant told you his story, you believed none,

or maybe just part, of what he told you. But your mere belief or impression of

the defendant’s truthfulness may not be admissible on direct examination. To

show the statement was untruthful or unreliable, the prosecutor may try to link

the statement with some contrary fact, either on direct or redirect examination:

Q: “Did the defendant tell you where he had been immediately before the

arrest?”

A: “Yes.”

Q: “What did he say?”

A: “He said he had just come from his house.”

Q: “When you spoke to him, did you have information contrary to his

assertion that he had just come from his house?”

A: “Yes.”

Q: “What information did you have?”

A: “I had watched him for at least 5 minutes before positively identifying

him as the robbery suspect. While I watched him during that time, I saw him

approaching, then entering, the park from the west. He lives southeast of

the park, so his direction of travel was inconsistent with his claim that he

had just come from his house.”

The jury can now conclude on its own that the defendant was lying based upon

the same reasons you concluded he was lying, and the prosecutor has her alibi

rebuttal for closing arguments.

But just as with cross examination regarding investigative steps, questions on

the truthfulness of a defendant statements can be much less direct. Defense

attorneys can word their questions in a way designed to get you to inadvertently

agree the statements are true. For example, assume you arrested Johnson and

are unaware of any health issues. You are asked:

“Did you ask Mr. Johnson if he needed insulin for his diabetes before you

took him to jail?”

If you did not have health information about Johnson and did not offer insulin,

some tempting answer choices are:

“No, I didn’t treat his medical condition.”

“No, I didn’t know he had diabetes.”

“The jail should have taken care of his diabetes issues.”

However, with each of these answers you are, in effect, testifying that Mr.

Johnson has diabetes – a fact you do not know from personal knowledge. The

better answer is:

“I am personally unaware of whether or not Mr. Johnson had diabetes, and

I did not ask about insulin.”

This is the best answer even if you heard from a reliable source that Mr. Johnson

does have diabetes. While you may feel comfortable confirming such a fact during

everyday conversation, you are only permitted to testify about information about

which you have personal knowledge.

Mistakes of Fact

Mistakes happen. Officers can err both before and during testimony. If you find

an error before testimony, such as in a report or prior statement, tell the

prosecutor. Most mistakes can be overcome fairly painlessly, as long as the

prosecutor knows about them beforehand. If your report states the suspect ran

north, but he actually ran south, prosecutors may choose to dismiss the case

(depending on the factual significance of the mistaken fact), but they probably

have better, less drastic options to correct the problem before trial. However,

prosecutors cannot easily fix such a problem if they learn about it during your

testimony.

Correction may not stop defense counsel from impeaching you with your

mistake, but catching the issue before trial usually eases its impact of cross

examination. Remember, if asked about the mistake on cross examination,

simply admit you erred and stop there. Do not try to explain why you erred or

what you may have done to mitigate the error. Not yet.

A mistake during testimony may also subject you to impeachment during cross

examination. If you testify the suspect ran north, but he actually ran south, and

defense counsel catches it, she may point out your mistake for the jury to hear.

Counsel impeaches witnesses for the primary reason of chipping away at their

credibility, not necessarily because they care about the correct answer. The

correct answer may not even be helpful to the defense. But they understand the

basic premise that the more a witness is caught in mistakes, the less valuable

their information will be to the jury. Mistakes during testimony also tend to make

you look less prepared, which a jury could interpret to mean you simply don’t

care – about the trial, the truth, or them.

But the reality is, no matter how much you care, mistakes do happen. The good

news is, juries really do understand that sometimes people misspeak, and as

long as it is not a recurring issue, they will make little of it. The important thing

to remember is, if you realize you made a mistake, interrupt questioning to

correct the answer. “Excuse me, Counsel, but a few minutes ago you asked me

___, and I need to correct the answer I gave you.” You will be allowed to correct

your answer.

If you don’t realize your answer was incorrect, but are prompted by one of the

attorneys (usually by reminding you of some previous statement you made to the

contrary), be humble, apologize for the error, and move on. Do not let it rattle

the remainder of your testimony. It will likely be a non-issue for everyone.

So, once again, preparation is key. The more prepared you are, the less prone

you will be to making mistakes, and if the mistake already exists before trial, the

prosecutor can strategize and prepare you for any consequences.

Playing Games

To have any real discussion about cross examination, we must acknowledge that

some defense attorneys will deliberately attempt to trick you or make you testify

to something that simply is not true. Certainly, that tactic is not prevalent, and

judges generally do not well tolerate such behavior in their courtrooms. But any

law enforcement officer who testifies may encounter it.

Picture yourself on a witness stand being cross examined when counsel asks

you, “Didn’t Officer Brown say something exactly opposite of what you just

stated?” While asking you this question, counsel is holding a piece of paper and

appears to be reading from it. You do not remember what the other officer’s

report says. You assume, naturally, that the paper counsel holds is your

partner’s report, and it does say something different from your testimony. So you

agree.

After trial, the prosecutor asks you why you agreed with the defense, and tells

you that the other officer’s report is not contrary to your testimony. He further

tells you he saw the piece of paper defense counsel was holding, and it was blank.

This example is one of many potential tricks counsel can play. As a witness, you

must be alert to the possibility of ploys to undermine your testimony and your

credibility. Once again, preparation is key. Ask the prosecutor whether defense

counsel in your case is prone to such trickery. The prosecutor may even have

past experiences with counsel to share. You may also want to contact other law

enforcement officers who have been cross examined by this attorney to determine

what to expect.

Once you are on the witness stand, an important tenet to remember is this: you

are not required to take anyone’s word for anything as a basis for your testimony.

Your job is simply to relay facts known by you in the form of responsive answers

to relevant questions. If counsel tells you to assume some other fact which you

do not know, or you know is not true, then the answer to the question is simply

not relevant. And if counsel has given himself the advantage of reading a

document that he is not sharing with you, you are not obligated in any way to

take his word for what is on that paper. In other words, you are not required to

play the game.

The prosecutor has some ability to assist you if defense counsel attempts to lead

you astray. One common technique is to object to the question. The prosecutor

may believe that the objection will be overruled, but may be trying to signal to

you that something is wrong. For example, the prosecutor may use one of the

following objections:

“Objection to the form of the question.”

“Objection, the question assumes facts not in evidence.”

“Objection, improper predicate.”

“Objection, beyond the scope of direct examination.”

“Objection, basis of knowledge.”

“Objection, relevance.”

The exact words used do not matter so much as does the signal to you that

something is wrong, and the prosecutor does not want you to attempt an answer

the question as it was posed. Consider options to a direct answer. You may want

the question rephrased, which would also give you time to contemplate your

response.

All that being said, at some point you may be required to say something in

response to a question specifically designed to trip you. If so, then first ensure

the jury knows you are very uncomfortable with the position in which you have

been placed. You can even politely call defense counsel out on his tactics. For

example:

“I don’t believe I can answer that question, sir, because I know that

information is not true.”

“I’m sorry, but I am not familiar with the piece of paper you have and I don’t

know what it says, so I don’t know how to answer your question.”

That way, even if you are required to continue, the jury knows what counsel is

doing, and counsel cannot later argue to the jury that you verified this

information as true. So, in the case of Officer Brown’s report, consider this

answers instead of a simple agreement:

Q: “Didn’t Officer Brown say something exactly opposite of what you just

stated?”

A: “I am unaware of any statement made by Officer Brown that is contrary

to my testimony, but I would be happy to look at whatever you have and

reconsider my answer if I need to.”

You have been eminently reasonable, and have spotlighted defense counsel’s

tactic for all to see. Counsel can either:

(1) show you what he is looking at, which will not happen if the document is

fake;

(2) order you to answer without benefit of the document, which will make counsel

look unreasonable or dishonest; or

(3) drop the line of questioning altogether.

Regardless of the tactic and whether you fall for it, remain calm. The prosecutor

will likely be able to assist you during redirect examination.

Redirect Examination: The Cleanup

If any part of your testimony could be considered almost enjoyable, it would be

redirect examination. This is the prosecution’s opportunity to “right the ship”

and refocus your testimony. It may also provide an opportunity to offer

explanation for cross examination answers in a friendly environment.

Sometimes the prosecution will decline redirect examination, if it appears

nothing needs clarification or response. If they choose to conduct a redirect, the

prosecutor still may not ask you about something you want very much to

explain. While this may be a source of frustration for you, the prosecutor

probably has a very good reason for not asking. But if you believe your answer

would have been important but it was missed, or something the prosecutor may

not have been aware of, mention it to the prosecution team after your testimony

so they may decide how to proceed.

Redirect examination adheres to the same format as direct examination, in that

the prosecutor will ask non-leading questions. It is limited to topics raised during

cross examination and should not be a repeat of direct examination, but

repetition opportunities will probably be present again. Your preparation with

the prosecutor will have identified key facts, an abbreviated version of which

should be worked into your redirect examination answers if possible.

During cross examination, you were asked leading questions and gave mostly

minimal answers – yes or no – without much explanation. Perhaps you were

impeached, or your credibility was attacked in some other way. Often, these

types of exchanges create confusion and complication of important facts. But

while you testified on cross examination, the prosecutor was busy watching your

signals and taking notes. Every time you gave a short answer, the prosecutor

knew the long version of that answer (because you met and prepared properly!),

and made a decision whether to bring up the subject again on redirect. If you

were impeached, the prosecutor assessed the damage and decided whether

raising the issue again would make it better or worse. It manifests like this in

redirect:

“Officer, you testified on cross examination that you made a mistake in your report.

Do you recall that testimony?”

“Yes, I mistakenly wrote north instead of south in my report.”

“Did you catch that mistake prior to trial?”

“Yes, I did, during a meeting with my supervisor three weeks prior to trial.”

“Did you take any steps to correct the mistake?”

“Yes.”

“What did you do?”

“I immediately notified the prosecutor’s office of the error and requested guidance.

I was told to file a new report regarding the error, which I did. The next day, I

supplied a copy of the new report to the prosecutor’s office and personally

delivered a copy to defense counsel as well.”

The full story has now been told, and (depending on the judge’s particular

practice) you probably will not be subjected to cross examination regarding your

explanation because no new issues were raised during redirect examination.

Your patience during cross examination has paid dividends. The jury will

appreciate your candor and your efforts to correct the mistake, as long as you

remain humble and contrite. Their memory of this topic during deliberations may

be, not that you made a mistake, but that defense counsel was distorting the

facts.

Conclusion

Testimony is indeed an art. Truth is paramount and preparation is key. The more

information you have, the better you will feel. To testify well, officers must be

willing to put their ego aside and evaluate their strengths and weaknesses. They

must ask questions, accept guidance from prosecutors, and use past mistakes

to be better officers and witnesses. They must be solid and steady in their

testimony and appearance, and know the rules of court and conduct. So be alert,

respectful, honest and patient. But most of all, be yourself.

Michelle Heldmyer is a Legal Instructor at the Federal Law Enforcement Training Centers

(FLETC). Prior to joining the FLETC, she served at the U.S. Department of Justice for 26 years

as an Assistant United States Attorney in Colorado and Florida. Prior to her service at DOJ,

Ms. Heldmyer was an Assistant State Attorney for the State of Florida.