By John V. Berry, www.berrylegal.com
It is very important for police officers to be prepared to deal with criminal defense attorneys when trial is pending. Both police officers and criminal defense attorneys are just trying to do their jobs when dealing with the court process. The key for law enforcement officers is not to get upset or defensive in their dealings with criminal defense attorneys. It is not helpful to consider the criminal defense attorney an enemy, but part of the judicial process itself. It is also important to consider the following tips in dealing with criminal defense attorneys as a case goes to trial.
Criminal Testimony Process
An individual has been arrested by a law enforcement officer for a traffic offense or other crime. The first step that they generally take is to hire a criminal defense attorney. The next thing that the officer knows is that they are being contacted by the prosecutor or their court liaison about court dates for an upcoming trial. The goal of criminal defense attorneys is to attempt to get a dismissal or otherwise dispose of a criminal case for a client. The goal of the law enforcement officer is to make sure that the individual is held accountable to the extent they should be and to testify for the prosecution in a manner consistent with law.
Criminal defense attorneys vary, as do their tactics. Some criminal defense attorneys are very good at what they do and do so ethically. Some criminal defense attorneys do not and show up at the last minute and are unprepared. There are ethical rules which govern what a criminal defense attorney can do for their client. They cannot have any part in the falsification of evidence, or advise their client or other witnesses to lie, but they can try to use every tool to help their client. The central goal of a criminal defense attorney is to attempt to discredit or confuse a law enforcement officer during testimony.
Tips for Law Enforcement Officers in Dealing with Criminal Defense Attorneys at Trial
1. Don’t Get Defensive During Testimony: A police officer should not get defensive during their testimony. Officer testimony is given a tremendous amount of credibility by both judges and juries. The number one way in which to reduce that credibility is to argue with criminal defense attorneys during trial. An officer is far better off answering the questions asked, politely, non-defensively and with an even voice. If a criminal defense attorney is able to rattle a police officer by getting him or her into an argument, it can play right into his or her strategy in discrediting the officer. Avoid this by being even keeled and police during testimony. If something in an officer's testimony needs to be rebutted or followed up on, the prosecutor can follow up with the officer on re-direct examination.
2. Do Not Take the Criminal Defense Attorney’s Actions Personally: As mentioned above, the criminal defense attorney’s job is to help his or her client. They are part of the criminal justice system as much as a police officer is. As a result, an officer needs to understand this and not take the questions or insinuations of a criminal defense attorney personally. A criminal defense attorney will represent an officer (if the time comes) just as aggressively as they do the individual the officer has arrested. It is important to keep that in mind. Criminal defense attorneys generally have an uphill battle in their cases, so they sometimes pull out all the stops to attempt to prevail. It is the police officer’s job to not take the bait. A police officer should not help a criminal defense lawyer distract a judge or jury from the issues on trial. Keeping cool, calm and collective and not venting anger towards the criminal defense attorney can help. If an officer does not keep cool during testimony it can impact his or her credibility.
3. Avoid Training History Pitfalls: Criminal defense attorneys will often question police officers if they received training on how to sound credible when they were in the police academy or through specialized training. The inference here is that the police officer has been trained in being deceptive, which is not true. The criminal defense attorney’s purpose in doing so is to allege that the officer is practiced at the art of deception. As a result, the officer should be prepared to respond that they received police training on how to testify professionally, logically and truthfully to attempt to dispel the notion that the police officer has someone been trained to be deceptive. It is especially important to be calm and polite during this type of questioning.
4. Dealing with Yes or No Questions: It is often the case that a criminal defense attorney will attempt to frustrate a police officer with yes or no questions in an effort to attempt to confuse what occurred or to infer that the officer didn't follow law or protocol. The criminal defense attorney will essentially try to put words in the officer’s mouth using these techniques. Don’t fall for it. If a criminal defense attorney interjects and badgers an officer by demanding that a question only can be answered by a yes or no, the officer should politely respond that they can only provide a truthful answer by responding in full. Wait for the court’s response before responding further. If the criminal defense attorney is allowed to push forward by the court, politely answer yes or no, and wait for the prosecutor to give you a full chance to respond. The information will all come out on re-direct examination, so it is important for the officer not to get upset or rattled by yes or no questions. Answering a difficult yes or no question with a polite yes or no may cause the criminal defense attorney to get frustrated.
5. Repeating the Same Questions - The Circle: Criminal defense attorneys may ask an officer the same question several times, in different manners in an effort to confuse and/or to attempt to confuse a law enforcement officer in their testimony. The goal of a criminal defense attorney here is for them to obtain inconsistent or conflicting answers from the testifying police officer. A prosecutor can object on the basis that the question has been asked and answered. However, if the prosecutor does not object (sometimes they do not) an officer can politely and respectfully respond that they have already answered that question. The key is to look the criminal defense attorney in the eye, humbly, and use respect in responding. If this can be done, then the police officer will have done their job successfully leaving the criminal defense attorney with frustration.
6. Preparation with Prosecutor: It is important for the police officer to be in contact with a prosecutor ahead of their testimony. Prosecutors, like everyone else, are busy, so it is important that an officer follow up if key testimony is coming up. If nothing else, the reminder will get the prosecutor focused (or least put the case on their to do list) on the officer’s case. Also, it is very important for the officer to review all of their reports and the documents associated with the case ahead of time. Preparation is key to successful testimony before a court and in response to a criminal defense attorney. This cannot be understated.
7. Short and to the Point: It is important for an officer’s testimony, when questioned by criminal defense attorneys, to be short and to the point. It does not help a law enforcement officer’s testimony to add details not asked for in a question. Doing so, quite often, can cause damage to the police officer’s testimony. Keep in mind that a criminal defense attorney may be trying to latch onto any additional testimony as a means of causing doubt in the case. The key is to be short and to the point. The officer should be honest and answer the question that is asked. An officer should not answer the question that is not asked or provide detail not sought. Following this simple rule helps in many cases.
If a law enforcement officer needs counsel and likely legal representation in order to protect them. We represent law enforcement officers in their legal defense matters. Please contact our firm at (703) 668-0070, www.berrylegal.com or visit our Facebook Page.