Recognizing and Controlling Courtroom Tricks

October 27, 2021

A Lieutenant with nearly three decades of policing experience shared with us some useful insights that can help you be more effective in court and avoid falling prey to strategies attorneys may use to trip you up during testimony. Here’s his advice…

Defense attorneys are taught strategies they can use to keep the jury from hearing detrimental evidence about their clients. To be effective in court, you need to know about these strategies and how to counter them.

Cross-examination strategies fall into two broad categories: tactics and tricks. A tactic is a method used by an attorney who believes that a witness is lying. Its purpose is to expose the lie and get to the truth.

A trick is used by an attorney who knows you’re telling the truth, and the truth hurts his case. The attorney tries to make it appear that you’re lying or incompetent or tries to make the facts different from what they are. Tricks are something you have to face almost every time you testify. If you learn to recognize and deal with them, you can wrest control of your testimony away from the defense attorney and back into your hands.

“Yes” or “No.” One trick used by defense attorneys is to ask you questions that require an explanation—but then try to limit your answers to a simple “yes” or “no.” They orchestrate these questions in such a way that your answer will create a false impression. Don’t fall for it. You have a right and an obligation to give complete answers that tell the whole truth, not just part of it.

One favorite I used to get asked all the time was, “Now officer, you didn’t advise my client of his Miranda rights before you began to interrogate him, did you?” What he’s looking for is a simple “no” but you and the defense attorney both know it wasn’t necessary to advise the defendant because he wasn’t in custody when you talked to him. But the jury doesn’t know that, and chances are they won’t find out unless you tell them. So, tell them. Explain it like this: “The suspect wasn’t in custody when I was talking to him. It wasn’t necessary for me to use the Miranda warnings.” Or, if it’s appropriate, “Your client just started talking before I had a chance to ask him any questions. I just let him talk.”

Often, when he sees you’re not going to answer with a “yes” or a “no” he’ll try to demand one or cut you off. At this point the prosecutor should ask the judge to let you complete your answer. If he doesn’t, there’s nothing wrong with intervening on your own behalf and asking the judge to let you explain. Remember, you’re obligated to give complete answers. A judge will usually allow you to elaborate.

Be aware of the importance of semantics and the role they play in the courtroom. The word “interrogation” carries a much stronger image than the words “question” and “interview.” The implication is that the poor defendant was grilled by the evil police officer. I prefer to say I talked to someone. The jury then has an image of a simple conversation between two people.

A play on words. Another favorite trick of defense attorneys, especially if you’ve been successful in turning the tables on the “yes or no answer” strategy, is to paraphrase your testimony and change it enough to give the jury an entirely different impression of what you actually said. He’ll say, “So what you’re saying is…” or “To put it in other words…” or even, “Let me summarize your testimony…” If you hear these words or any similar words come out of an attorney’s mouth, pay close attention to what he says next and be prepared to correct him if he changes the meaning of your testimony.

Misdirection. Defense attorneys will sometimes focus on something insignificant that you did or failed to do and blow it out of proportion in hopes of diverting the jury’s attention from the evidence. Questions about the crime scene such as, “What channel was the TV tuned to?” are used to misdirect. The answers may have no significance at all to the issue being tried, but the defendant’s lawyer will make them appear to be of major importance if you don’t know the answer.

The best way to avoid this trap is to prepare your testimony when you begin the investigation. Most of the material attorneys use for misdirection come from officers’ mistakes and omissions. Be thorough up front so you won’t have to explain your mistakes later in court.

Another way to combat misdirection is with the same technique used with the “yes or no” answer. Again, explain what you did or didn’t do and why. If the attorney asks, “You didn’t have the murder weapon fingerprinted, did you?” tell him it was because several people had handled it, it was thrown into a rain-filled gutter or whatever the reason was that made it impractical or unnecessary. Don’t just let him leave the jury with the impression that you didn’t do something you should have done.

Confusion technique. Defense attorneys often ask witnesses, particularly police officers, to describe things that can’t adequately be described in words. Red flags should fly if you find yourself being asked to describe something that can’t be described. You may look stupid if you try, and he might be trying to get you to give an answer that he can use against you. Don’t fall into this trap. Just tell him that you can’t describe what he’s asking you to describe.

Another confusion technique is the hypothetical or “what if” question. If you say the defendant wasn’t in custody when you questioned him sans Miranda, the lawyer could ask, “If my client had said he wanted to leave, would you have let him?” In whatever form they take, these questions always ask you to speculate on something that didn’t happen. Don’t answer hypothetical questions. Just say, “Well, that never came up,” or “I can’t answer that because that’s not what happened.” Stick to your guns. He will give up if you don’t cooperate with him.

Full Auto. This is my term for questions fired at you in a rapid stream with barely enough time to answer in between. The attorney has two purposes here. He wants to control the pace of the testimony so you’ll feel intimidated and he can more easily manipulate you. He also wants to keep you from having time to think about your answers in hopes that you’ll say something he can use to discredit you.

Multiple questions (several questions fired at you at one time) serve the same end. They also help to create confusion because neither the prosecutor, the judge nor the jury is really sure which question you’re answering.

The solution is simple. When the attorney speeds things up, slow down. If he starts trying to fire questions at you in a high-pressure, rapid-fire manner, just take your time. Look at the prosecutor. Look at the jury, or the ceiling. Take a few seconds to gather your thoughts before you answer. It will throw his timing off and get you off the hook.

The same holds true for multiple questions. Stop for a second, gather your thoughts and then ask him which question he wants you to answer first.

The personal attack. One of my fellow officers was testifying in a DWI trial many years ago. When the officer had trouble remembering some trivial details of the arrest, the defense attorney yelled, “Officer, were you drunk when you made the arrest?”

Another officer was accused of arresting a woman because she refused to have sex with him. Several officers have been asked if they kept portions of the drugs they found for their own use. The defense attorney will do anything he can to divert attention from his guilty client.

How should you react to this kind of absurd attack against your integrity?

Honestly.

We’ve been taught to be professional in our demeanor and not to become angry or show emotion when we testify. That’s good advice in most situations, but a little honest reaction to an unjustified attack could prevent the jury from believing what the attorney says. You might say something like, “Of course not! That’s absurd and you know it,” or simply, “You know better than that!”

Testifying in court is an important part of your job. It is as important as anything else you do. All the careful investigation and meticulous gathering of evidence you do is useless if you go into court and let the defense cheat you out of presenting it to the jury.

Keep these principles in mind and observe. Study the defense attorneys and the officers. See what tricks the attorneys use and how officers counter or succumb to them. Hone your testimonial skills the same way you would any other job-related skill. After a while, the attorneys in your area will get to know you and how much they can get away with. If you’re good, they won’t even try to play tricks. After all, nobody likes to look foolish in front of a jury.

Have additional tips to share? Have you gained courtroom wisdom that other officers could benefit from? Let us know! E-mail the Calibre team at: editor@calibrepress.com

Related Posts

Why it is just as important to document force avoidance as it is to document the use of force

Why it is just as important to document force avoidance as it is to document the use of force

Illinois Active Shooter: Standing at the Crossroads of Mental Health & the Law

Illinois Active Shooter: Standing at the Crossroads of Mental Health & the Law

Mind-Saving Tips for Building Emotional Resilience

Mind-Saving Tips for Building Emotional Resilience

A “Hunch” and Intuition are Different. For Cops, That Makes a Difference.

A “Hunch” and Intuition are Different. For Cops, That Makes a Difference.

Foot Pursuits: The Last Installment of a 3-Part Series

Foot Pursuits: The Last Installment of a 3-Part Series