Courtroom Survival: Operational Safety After The Fact

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The purpose of operational safety training is to prepare officers for that aspect of their job that has the potential to put them in harm’s way, and includes knowledge for officers to make correct decisions within lawful and procedural parameters, physical skills for officer safety and subject control, and strategies to manage the stressful aftermath of confrontations.

One aspect that is often not addressed properly is courtroom procedure. In the course of operational work, it is possible that officers may have to attend court to testify, either as a key person in a case (for example, as the arresting officer), a witness (for example, to testify on the actions of others), or in the event officers act outside proper protocols, as a defendant (for example, accused of a crime in a criminal prosecution or against whom civil relief is sought in a civil case).

When it is time to go to trial, officers may be called to testify, so their courtroom skills need to be solid enough to help win the case, or else their lack of skill and preparation may endanger it. Officers should also be mentally prepared to testify effectively, as the consequences of failing to do so have been seen too often and are simply too dire.

Officers can get snagged on the stand by issues that have nothing to do with their credibility or level of professionalism. They get caught up in little things that are preventable through training and practice. Testifying in court may be the most difficult and important task officers face in their career. No other assignment subjects officers and agencies to more intense scrutiny than an officer’s credibility, competency and conduct in a courtroom.

If an officer fails to be an effective witness in the courtroom, all the work that he and other officers did on the case, all that the victims and their families endured, all that other witnesses may have done over many months or years it takes for a case to go to trial, will have accomplished nothing more than a procedural process. An officer’s ineffective presentation in the courtroom can result in the acquittal of a subject, no matter how much evidence they have or how well they followed procedure during the actual incident.

The reputation of officers and agencies can be enhanced or harmed by a courtroom presentation. It is a high pressure situation, but if officers educate themselves they can hone their skills as a witness to match those they have in operations and prepare themselves to be as effective in the courtroom as they are on the job.

Court Preparation

When compiling a brief of evidence, it is essential to have a clear understanding of what will constitute admissible evidence and what material is likely to be ruled inadmissible or excluded in the exercise of judicial discretion. The law of evidence consists of the rules and principles that govern the means of proving the facts in issue. The rules are concerned with regulating that part of the law of procedure that determines what facts may or may not be proved, what sort of evidence may be given of such facts, and by whom and in what manner the evidence may be proved. The facts in issue are those that a party has to prove in order to succeed and are determined by the charge, the plea, substantive rules of law and the way the case is conducted.

Cases proceed to court on the strength of the evidence, including whether it is corroborated, the reliability of the evidence, the credibility of witnesses and the weight likely to be given to their evidence. There is no point in proceeding with a case that has no prospect of success because it will only waste the time of all involved and result in unnecessary costs. Preparation for court appearance ensures that all relevant evidence has been properly prepared, who is to present what evidence, and that each person is prepared to attend court and thoroughly understands what is required of them. Legal counsel may collaborate with witnesses, but a witness must not discuss their testimony with other witnesses before or during the case.

Prior to attendance in court, officers should speak with legal counsel in relation to the matter being heard. This allows both parties to clarify all issues prior to officers taking the witness stand. Officers should ensure that all material to be used or referred to has been thoroughly reviewed. They should look at their reports through the eyes of an attorney. Be aware of holes and possible angles of attack. Officers should make sure the report is as thorough, detailed and iron clad as possible and then be ready to discuss issues they can predict attorneys will bite down on. It is imperative that they are totally familiar with the information to be tendered, that it is complete and all items are immediately available when requested. Court is not the place for surprises, as officers may harm their credibility and the credibility of the case.

Court Protocol

The following guidelines are offered for professional officer conduct during court proceedings.

Presentation

Officers should present for court with the same attention to detail they would going on duty. They should be exceptionally neat – fingernails clean, hair trimmed, clothes pressed, shoes shined. Carry only the essentials and avoid unnecessary items that may distract. Agency policy may dictate whether officers wear uniform or civilian clothes when they testify; often, on-duty officers wear uniform and off-duty officers wear civilian attire.

Credibility starts with conduct. Officers should mentally prepare themselves for the fact that when they enter the courtroom everyone will most likely be watching their entrance. Stay poised and remember that this is how every witness is viewed. Officers should bow their head to the presiding magistrate or judge as a sign of respect for the court and the authority they hold when entering and leaving the courtroom and after being excused from the stand. Officers should not avoid looking at the judge or jurors; look at them as if speaking normally to a person.

Swearing In

Officers who frequently testify in court often view the swearing in process as a rote exercise, which can be communicated in their attitude and demeanour, such as only partially raising their hand and holding the fingers in a relaxed, cupped posture, failing to look at the person swearing them in, engaging in other action or starting to seat themselves while the process is being administered. Officers should be mindful of what this communicates about their respect for the truth. Much of a juror’s impression about witness credibility is based upon witness demeanour rather than what they actually say on the stand and officers should not communicate a cavalier attitude towards the truth.

Swearing in is an excellent opportunity for officers to make a strong, credible first impression within which all subsequent testimony will be viewed. During the process, look at and seriously listen to the person administering it. Keep the right hand at shoulder level with wrist and fingers extended until the process is completed. Give it the respect it deserves, and make eye contact with the jury. The oath is a word of honour, a personal promise to the jury that they can trust officers.

Demeanour

It is normal for officers to be nervous on the stand – they might sweat, shake, have trouble focusing, forget names, speak too rapidly or in a monotone voice, the voice may involuntarily raise or lower – all of these symptoms are normal. A normal reaction to the stress of being on the stand is slouching, so officers should sit up straight, but not stiffly. Orient themselves in the courtroom by looking at each of the walls within their vision without turning around, and looking at each person or groups of persons in the courtroom. Officers can control anxiety the same way they control stress in operations, by breathing properly.

Officers should be calm and confident but not try to look or sound smarter or more self-assured than they are, as this may convey the impression of being cocky or faking it. Everyone has different personalities, presentations and ways of filtering information. Officers cannot change who they are as a witness, so they should not try to. They should talk as they normally would in a professional manner. It is okay to be nervous, and most officers are when they testify. The jury needs to understand the officer, relate to and believe him.

If officers are working a night shift or have otherwise been up all night before testifying, tell the prosecutor and suggest that he establish this in the beginning of the direct examination. Sleeplessness (or illness) will affect officer demeanour, and the jury should have this information so they can evaluate it for what it is and avoid drawing negative inferences.

Testifying

Listen carefully, think before speaking and be attentive. This communicates that officers care about being accurate and responsive. They should take time as needed to fully understand the question and give a proper response. It does not hurt to appear thoughtful, so officers should organise their thoughts.

A common misconception officers have is that they need to have an answer for every question and remember everything. That is not true and it can prove dangerous to believe otherwise. If officers do not know something or cannot recall specific details or events, by all means they should say so. Trying to fill in memory gaps or make up answers can wreck a case and put officers in professional peril. Do not fabricate. Only ever tell the truth. Remember, officers are there to perform a job – to testify truthfully and accurately.

Answer the question being asked. It is tempting for officers to add information that they think helps the case, but they should resist doing this. This is the prosecutor’s job, so officers should let them develop their testimony. Do not jump ahead and do not anticipate. When officers elaborate for one side and then are very reserved when cross examined by the other, they appear biased and this undermines officer credibility as an objective reporter of facts. Adding extraneous information to answers also opens up other areas for cross examination.

Experienced officers can be particularly susceptible to trying to help cases by angling their answers in a manner they believe will aid the outcome. Sometimes that can affect their ability to be completely neutral when they get in to court. An officer’s job is to remain neutral. He is there to present factual evidence on behalf of the incident. There are a lot of ways for judges to make a decision, and a key one is in believing the officer. If officers look like they are an advocate for something as opposed to being neutral, they may end up being less credible from the viewpoint of the judge.

Speak a little louder and slower than is necessary. Do not inject long pauses between words, phrases or sentences, but do concentrate on making each word clearly heard and understood. Be sincere and dignified. Trials are serious matters for everyone involved. Officers should refrain from wise cracks and clever remarks, but it is okay for them to laugh at themselves or an unexpected occurrence, if appropriate. Avoid appearing frozen, calculated or completely devoid of emotion.

Remain calm and respectful. If officers lose their cool on the stand they lose credibility with the jury. The jury, as citizens, have granted officers with authorities and responses they do not permit themselves. If officers cannot control themselves in a courtroom, they are justified in being gravely concerned about their ability to control themselves on the job, where officers are subjected to much greater stress and no one is watching.

In a case where an officer’s choice of tactical response option is questioned, the first thing a defence attorney is going to try to show in court is that the level of force used was excessive. The attorney is going to try to show the jury that the officer is a hot head with a short fuse and an explosive temper, that officer behaviour on the stand supports the accusation that he cannot control himself or he is prone to violence and acted inappropriately. To achieve this outcome, the attorney will agitate the officer and lure him into demonstrating some kind of physical or verbal aggression.

Officers should resist the temptation to fire off cynical remarks or a negative glance, point fingers aggressively, squirm in their seat like they want to strangle the attorney, and should avoid getting cute with their answers or firing a question back at the attorney out of frustration. Officers should know things can get adversarial on the stand, and many times officer credibility is the only thing attorneys have to attack, so they should prepare themselves ahead of time to spot an emotional luring tactic and immediately be ready to counter it with calm rationale.

Officer patience and temper can be tested with interruptions, delays, argumentative questions and character attacks, but they should not become arrogant, antagonistic, impatient or excited. The worse it gets, the greater an opportunity officers have to impress the jury with their strength of character and integrity. Like it or not, jurors hold officers to a higher standard than they do lay witnesses and they expect officers to be able to withstand more pressure and still remain professional.

Officers should prepare for the totality of their operational roles. An officer’s task in court is to educate people that he is just doing his job and does not have a personal stake in the outcome for subjects. Knowledge of procedural guidelines, having appropriate physical skills for safety and control, and managing residual emotional fallout after an incident are all critical for operational effectiveness.

Being able to professionally and competently see the process through in court to ensure a successful outcome is an equally important aspect that officers should be well versed in. The personal stake is that officers did a good job, handled themselves professionally and their credibility is accepted.

Richard Kay is an internationally certified tactical instructor-trainer, director and senior trainer of Modern Combatives, a provider of operational safety training for the public safety sector. Visit www.moderncombatives.com.au for more information.

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