Effective Preparation to Provide Sworn Testimony
by Gary W. DeLand
Being able to testify effectively in court is an important skill for both law enforcement and corrections officers. Law enforcement officers must testify at criminal trials and both cops and corrections officers often find themselves in civil court testifying in civil suits. Although, the testimony of law enforcement and corrections officers plays a significant role in determining the outcome of cases, all too often that testimony is inefficient in many respects. As an expert witness and litigation consultant, I often have the opportunity to observe the testimony of officers. While I have noted that good criminal investigators are also often comfortable and confident witnesses, many of the officers I have observed show obvious discomfort and struggle during testimony, especially, during cross examination.
In my experience, officers who testify in civil cases are among the least experienced in providing sworn testimony. I am sure that it comes as no surprise that for most of the officers who infrequently testify in court, providing testimony in the adversarial environment of litigation can be very stressful. Pending testimony can provoke anxiety resulting in fear or worry about standing up to cross examination, making critical errors, not remembering key information, being embarrassed opposing counsel, or being found culpable by the fact finder. Anxiety can also result simply from not knowing what will happen during trial. Most officers find that the anxiety diminishes as their experience testifying increases. For others, the fear of testifying remains a constant source of agitation and discomfort. Both the comfort and competence of officers can be improved by training staff with the skills necessary to provide effective sworn testimony. Unfortunately, it is rare for agencies to provide staff members training regarding how to effectively prepare for and to deliver sworn testimony.
Preparation is the Key to Effective Testimony
The most important element in providing effective sworn testimony is thorough preparation. Effective preparation should include:
- refreshing memory regarding the facts;
- assembling any reports or other documents which may be needed as testimony aids; and
- preparing with counsel to:
- ensure adequate understanding of the objectives of the pending testimony;
- discuss what will be asked in direct testimony;
- discuss likely questions that will be asked during cross-examination;
- attain an awareness of the tactics and approach likely to be used by opposing counsel; and
- to discuss any questions or concerns regarding the pending testimony.
While the primary objective of preparation is to assist the witness to provide more competent testimony, the process should also significantly improve the witness’ confidence and reduce any existing fear or anxiety over the pending testimony. The more a witness experiences the success of providing of effective testimony,his confidence and future effectiveness will grow. Hopefully, this article will assist deputies and officers to systematically prepare to deliver effective testimony. It will also discuss the various types of sworn testimony, provide tips for effective preparation, and assist those with limited court experience understand key elements of testimony. Accuracy and Veracity in Sworn Testimony are essential.
Sworn testimony is testimony given following the swearing of an oath to “tell the truth, the whole truth, and nothing but the truth.” Although parsing of terms and manipulation of language have been prominent on the 5:00 o’clock news and the meanings of “truth” and “perjury” have been skillfully and politically turned on their heads. In the real world of sworn testimony, truth has a less complicated and more black-and-white definition. Accuracy and veracity in providing testimony are essential. Even though inaccurate testimony is often the result of poor memory or preparation, rather than intentional deception, the credibility of the witness will be affected immediately and in future cases. Although it does not happen with great frequency, lying under oath may be prosecuted as perjury, a criminal offense.
At the very least, an official caught lying in sworn testimony will find his credibility in court irreparably damaged. Every future court appearance made by an official who has been caught in a lie given in sworn testimony risks being tainted and distrusted in future testimony. Competent attorneys who prepare cases for court, in most cases, already know the answers to the questions before they ask them. They have had the benefit of examining interrogatories, depositions, and other discovery. Lying, shading the truth, evasive answers, and other attempts to deceive the trier of fact will almost always end up hurting and possibly discrediting the witness and his testimony.
Types of Testimony
Although testimony ordinarily refers to evidence or responses given by a live witness, for purposes of this article. “testimony” will include oral evidence provided at deposition or trial, and written declarations and other information provided in the form of affidavits or answers to interrogatories.
Interrogatories are a set of written questions concerning a case submitted by one party to the opposing party or witnesses. The purpose of interrogatories is to discover information relevant to the litigation and known by or in possession of the person to whom the interrogatory is directed. The answers to interrogatories are generally given under oath. When an official receives interrogatories he should immediately contact assigned legal counsel for advice and assistance. Some questions may be subject to objection and should not be answered unless required by the court. Even legitimate questions should be discussed with counsel before they are answered.
Affidavits are written declarations or statements of fact made under oath and notarized. Affidavits are often used by the defense to support a motion for summary judgment. Affidavits should be prepared with the assistance of counsel to ensure that they meet legal requirements as to form and substance.
Depositions are a means of discovery, which allows counsel for one party to take the sworn, out-of-court, oral testimony of the other party or a witness for the other party. Depositions provide a means of discovering the testimony of the other party prior to trial. Information gained during a deposition allows the party taking the deposition to determine whether to continue prosecuting or defending the case, to develop strategies for trial, to impeach witnesses who provide testimony at trial which is inconsistent with that given at a deposition; and to otherwise prepare for trial. Depositions are less formal and are generally less threatening to witnesses than trials, but since there is a written transcript of the sworn testimony; witnesses must approach depositions with the same preparation and focus as they would a trial before a judge. Many attorneys assume a very friendly and relaxed approach during depositions. It is important not become too comfortable and careless as a result of the more ________ attitude projected by the attorney. No matter how pleasant plaintiff’s counsel may be, it is still an adversary proceeding and the witness should remain alert. Witnesses should not let down their guard. Some depositions can be more confrontational and intense than testifying at a trial. While some attorneys use a friendly or, at least, respectful tone, some attorneys prefer a combative, aggressive, in-your-face style intended to intimidate the witness. In a Los Angeles Jail case with which I was involved, the depositions were so combative and antagonistic that nearly all of the depositions required the presence of a referee to control the hostility and interchange between opposing lawyers.
When facing attorneys using aggressive, demeaning, or intimidating tactics, just remember they are not allowed to kill you or eat you. A question asked, regardless of the venom with which it may be presented, should be asked truthfully and respectfully. Witnesses should not let such tactic influence either their answers to the questions or the tone in which they answer. The witness should be aware that attorneys using such tactics do so to influence the witness’ testimony by intimidating the witness, cause the witness to lose concentration, to incite the witness into responding in kind, or to create emotional rather than thoughtful responses. Such tactics may result in objections to assist the witness, but in the end it is up to the witness to carry his own weight by responding to questions in calm, relaxed, deliberate, and professional manner.
Witnesses may be required to answer questions at deposition, which they will not have to answer at trial. Attorneys may object to questions during depositions, but most often the witness will be instructed to answer anyway. If an objection is raised the witness should not answer the question until the objection has been made and he is instructed to answer by his attorney. If instructed to answer the question, the witness should request that the question by repeated to ensure that the question was remembered correctly. If the witness’ attorney instructs him not to answer, then no answer should be given. If plaintiff’s counsel is insistent that the question be answered, but defense counsel continues to instruct the official to not answer the question, then he should not answer. Plaintiff’s counsel can then file a Motion to Compel to try to convince a judge to require the question to be answered—possibly at a later deposition.
Trials are formal judicial hearings in which the issues of the contesting parties are examined and legal determinations are made. Issues of fact may be determined by a jury, or in the case of a bench trial, a judge will hear the case without a jury and make necessary findings of fact and rulings.
Preparation Should Be Thorough
The need for strong, credible testimony in persuading the trier of fact is obvious. Mistakes, contradictions, vacillation, and other ineffective testimony will weaken the case. Preparation is the key to persuasive testimony. The most important rule of preparation is to start early and prepare thoroughly. The stakes in both criminal prosecution and civil litigation are high and should not be decided contrary to the interests of justice based on the testimony of ill-prepared witnesses. Lack of preparation creates a serious disadvantage and a reduced potential for a proper outcome.
Witnesses should gather all reports and other documents that are relevant to their testimony. If interrogatories have been answered or depositions given they should be collected and carefully studied. If the officer has not been provided a copy of either, it will be necessary to take the initiative and contact counsel to obtain the necessary documents. After gathering the case file materials, the official should carefully review the information to refresh his memory and develop the foundation of his testimony. Preparation for testimony should also include meeting with counsel. The witness should discuss with counsel the general issues involved in the litigation, the defense strategy, and his own testimony, and should ask any questions or articulate any concerns that should be resolved before testifying. To prevail in a cause of action, the moving party must prove the specific elements, which establish a violation of the penal code or in civil litigation the infringement of a plaintiff’s rights. For testimony to be effective, it is important for officers to understand and competently address each of those elements.
As the official prepares for trial, he will be able to anticipate many of the questions he will likely be asked by opposing counsel. A good technique in preparing testimony is to practice answering anticipated questions aloud. Since thinking out an answer is easier than delivering the answer orally, orally answering questions during preparation will be very helpful in preparing to respond orally to direct and cross-examination. If there is someone available to assist with the process, allow that person to ask question in various ways and challenge answers. Following the oral practice session, evaluate the manner in which the questions were answered, and work on improving delivery of testimony. Regardless of how competently a witness may have investigated a case, if he poorly presents himself in court his investigative prowess may be for not. Likewise, in a civil action, regardless of how proper and professional a deputy or officer may have performed his duties, weak testimony may be unpersuasive to a jury.
If the witness was previously deposed and provided weak, unresponsive, or poorly articulated answers, careful thought must be given to the deposition testimony in preparing for trial. Trial provides a second opportunity to provide more thoughtful and responsive testimony. It is easier to think through such issues during preparation than while under the stress of answering questions from opposing counsel. With proper preparation, there is no reason why an officer should be surprised during direct examination, nor should counsel be surprised by an answer of his witness. Likewise, competent preparation should reduce the chances that opposing counsel’s questions will result in create much surprise.
Witnesses must also remember testimony is not intended to be a memory contest. Accuracy, certainty, and completeness in delivering testimony are far more important than trying to demonstrate memory prowess. Notes, reports, and other documents may be used to assist in providing testimony. Any notes or documents which the officer deems necessary to ensure effective testimony should be identified and set aside for use in court. Notes have the advantage of helping witnesses refresh their memory, provide more accurate testimony, testify competently on complex issues, and control the pace of the cross examination. There are also disadvantages in taking notes to the stand. Opposing counsel is entitled to see anything a witness takes to the stand. To the extent the information which forms the basis for testimony, can be committed to memory, the need for notes will be reduced. Depending on the complexity of the issues involved, some witnesses do better without notes.
Establishing and Articulating a Valid Rationale for Actions
Effective courtroom testimony begins long before the official takes the stand and even before criminal or civil action has been filed. To be effective in court, it is necessary to develop a consistent system of decision-making against which subsequent actions will ultimately be evaluated. Each and every decision regarding use of force, conducting an intrusive search,making an arrest, or caring for a vulnerable prisoner should involve consideration of a specialized set of criteria, and that same criteria should, in turn, serve as the basis for documenting the action taken. Testimony can then become a simple extension of the same process by organizing those elements in a consistent and uniform manner to form the witness’ testimony.
In prisoner litigation, actions by officials which prisoners claim are an infringement of their rights; the articulated rationale or justification of the officer is often a key factor in determining defending litigation. There are three distinct moments which are critical to defending any incident involving the action of the officer-witness: (1) the officer’s decision to take a particular action; (2) the officer’s documentation of the action; and (3) the officer’s testimony in court. At each of these three stages, the officer’s rationale is essential to defending his actions, and the rationale must be consistent throughout. In other words, the officer’s actions should be taken for lawful reasons, and must then those reasons must be properly explained in both the officer’s report and in subsequent courtroom testimony. The officer’s rationale must be within the limits set by law to be upheld. It is, therefore, imperative that officers understand the individual elements of the constitutional law, which govern his actions, act consistent with legal requirements, and effectively articulate the rational for their decisions and actions taken.
Simply walking into a courtroom and answering questions without having carefully prepared is not a formula for success in court. Opposing counsel has had months to engage in discovery and research, to develop tactical plans, and prepare for examination of witnesses. The attorney may have also retained experts who can assist in preparing the questions for depositions and trial testimony. Witnesses who do not wish to share the fate of General Custer at the Little Big Horn should never give testimony in a deposition or a courtroom without thoroughly preparing for the experience.
Gary DeLand is the Director of Jail Operations for the Utah Sheriffs’ Association and President of DeLand and Associates, Inc. He has traveled to more than 45 U.S. states to provide legal issues and other criminal justice training. Formerly, Gary served as Commander of the Jail Division for the Salt Lake County Sheriff’s Office. In 1985, he was appointed to the position of Executive Director for the Utah State Department of Corrections. Gary also served as Sr. Advisor to the Iraqi Ministry of Justice,Correctional Services Division in 2003. He has served as an officer for NSA’s Presidents and Executive Directors Committee and as Chair of the ACA Legal Issues Committee. Gary is the past Editor-in-Chief and Executive Editor of the Corrections Managers’ Report. He currently serves on the NIJO Executive Advisory Board.