Your Day in Court

As an investigator or officer, court day is the grand finale of your investigation. The opportunity to show off your good works. Court day has finally arrived. You have been called to the witness stand.


Courtroom testimony is a critical law enforcement tool needed to conduct investigations, enforce the nation’s laws, protect its citizens and maintain national security.

Accordingly, the ability to develop the skill set necessary to deliver timely, accurate and truthful testimony is vital to the success of these investigations. Without proper training and re-training, federal, state, and local law enforcement experts will continue to struggle in developing the necessary acumen to become a successful witness. No magazine article can take the place of that very important training. But we can discuss, as a reminder, some of the techniques and tips as they relate to Trial Preparation, Direct Examination and Cross Examination necessary to maintain an appropriate level witness fear and to seek “success instead of survival” in courtroom testimony.

Trial Preparation

An exhaustive review of trial preparation in any media would be voluminous. However we can focus on a few key requisites that may be of particular value to you. Proper trial preparation is clearly essential to the success of any investigation. Some of the key elements are: Report Writing, Pre-Trial Preparation, Evidence Handling and preparing one’s self as a Technical or Expert Witness.

Report Writing

Investigative reports are the cornerstone of any investigation. “The quality of the report will reflect directly on the officer’s value as an investigator, and therefore will always directly affect his credibility as a courtroom witness. It is, in short, the written record by which the quality of the investigator’s work is judged; it can compliment or damage the effect of their testimony.”

Sometimes lawyers will have their law clerks read reports backwards to check for typographical errors. Get in the habit of reading your report. Read. Read. Read… then read again. It is your report, know what it says.

Know the law as it applies to this investigation, specifically “as it applies to the use of the investigative report during testimony.” 2 Cases are won and lost on the little known facts of the investigation. Know dates, times, names, places and events. Remember you are the storyteller, so it is imperative you get the details right. Study the case file to include other officers’ reports. Finally, study the notes you used to write your report (peruse the details, don’t just glance at it the night before).

Pre-Trial Preparation

“Many investigators group case division into two main categories: the investigation and the trial. The thinking is that the investigator has done his job when the arrest is made and evidence is secured. From that point on, the case belongs to the prosecutor. . . Nothing could be further from the truth! The prosecutor. . . requires a joint effort from the beginning of the investigation to the trial verdict.”

Demand the prosecutor’s time. During pre-trial preparation, you must review your investigative reports, notes and evidence with the prosecutor. You are not rehearsing testimony–simply preparing for trial.

The need for pre-trail preparation is critical to the investigation, yet often disregarded. Don’t let this happen to you, “demand the prosecutor’s time.”

Evidence Handling

It is the nature of the human mind to “remember more of what they see than what they hear.” 2 Most of us are more visual and tactile than auditory in our ability to recall specific details of an event. Therefore, “except for the unlikely confession of a defendant or eyewitness identifications, nothing compares to the presentation of evidence,” 2 which can be seen, heard and touched. Remember, “what you tell them is testimony, what you show them are exhibits.”

Collection of evidence is vital. The who, what, when, where, victim’s assistance, equipment, investigative resources, exhibit list are decisive during trial.

Understand the theory of evidence admission at trial. This is to include the preservation of evidence including chain of custody; categories of evidence like direct and/or circumstantial; demonstrative evidence including the advantage thereof; scientific evidence such as that provided by expert witnesses and scientific evidence like photographs, videos, maps, models, diagrams and exhibits. 2

Exhibits are very powerful as evidence and it is your responsibility, along with the prosecutor, to present this evidence in a meaningful and impactful manner.

Direct Examination

Direct examination begins. This is by far the most crucial part of your job. The amount of hours you have spent on an investigation, interviewing witnesses, participating in surveillance, reading your reports, reviewing your notes are all for naught if you fail in the courtroom. It all comes down to this day, your moment to present the facts of the investigation as you know them in a court of law. You are not to concern yourself with “guilt” or “non-guilt. Your job is to tell the truth and present the facts to the judge and/or jury. It is worth repeating, “This is a crucial part of the case.” 3

“Direct examination is the questioning of a witness by a party who called him or her, in a trial in a court of law. Direct examination is usually performed to elicit evidence in support of facts which will satisfy a required element of a party’s claim or defense.” 3 For an officer or investigator this is usually the easy part. Remember, you are to provide the facts of the case, not your opinions. That is reserved for an Expert Witness. The prosecuting attorney under direct examination “is generally prohibited from asking leading questions.” 3 At this point in time, you should have had access to the prosecuting attorney and prepared your testimony. When this line of questioning is over, you may feel pretty good about yourself. A good prosecutor can make their investigators look extremely competent and prepared on the witness stand. You know the questions to be asked, you have prepared yourself through study. What could go wrong? Right!

Cross Examination

You are still seated at the witness stand. It is now the turn of the defense counsel to ask you some questions.“In law, cross-examination is the interrogation of a witness called by one’s opponent. It is preceded by direct examination and may be followed by a redirect.” 4 “In the United States, the cross-examining attorney is typically not permitted to ask questions which do not pertain to the facts revealed in direct examination. This is called going beyond the scope of the direct examination. The main purposes of crossexamination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to
lessen the weight of unfavorable testimony.” 4

Are you ready? Are you prepared? Remember to be truthful. Let’s begin.

The defense counsel will rise from their chair. Usually they re-introduce themselves to the court and in many cases for the first time to the witness.

Then the defense counsel may ask questions like these:
How long have you been an investigator or examiner for the agency of which you are employed? And during that time frame you have a good work record isn’t that correct?
As a course of practice you don’t make any mistakes in your investigations or examinations, isn’t that correct?
With regard to this investigation that you are here today, it is your sworn testimony that you haven’t made any mistakes, have you?
Is it possible that you overlooked something in your investigation or examination?
Since it is possible that you overlooked something, it would be possible that the thing you overlooked could have been very important, isn’t that correct?
Is it possible that if you had discovered that important piece of evidence or item of information, it could have led you’re investigation in a different direction?
Since it is possible that your investigation or examination could have gone in a different direction, then of course it must be possible that the new direction could have led you to a different result or person, isn’t that correct? 5

Have you ever found yourself in this situation? We all have. Most officers, examiners and investigators fail to take advantage of or don’t receive appropriate training on the proper methods of providing courtroom testimony. This is a systemic problem facing law enforcement today. Those citizens who are impaneled as jury members naturally assume that you are properly trained in all aspects of law enforcement investigations and/or the associated laboratory and forensics disciplines. Furthermore, that you are properly trained in providing testimony and you do so on a weekly or semi-periodic basis. It is the very lack of experience that creates anxiety when you are called to testify. 5

Technical or Expert Witness

“Technical or expert testimony is any testimony of expert scientific, engineering, economic or other specialized nature used to assist the court and the lawyers in a lawsuit or prosecution. An expert witness is a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the “expert” must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects.” 6

As a technical or expert witness, avoid the overuse of jargon. Some technical terms may be common knowledge in the work place but need explanation in the courtroom.

Acronyms are especially difficult for jurors to grasp and maintain any semblance of an accurate meaning. So it is probably best to stay away from them. If your testimony has to include acronyms, it is important that you repeat the meaning often enough that the jury will remember. It is your job to present the evidence in a meaningful and impressive manner. Take time to explain each acronym. Avoid the pitfall of thinking the jury will recall your testimony. Repeat and explain jargon and acronyms as frequently as possible. Take your time in answering questions. If a definition or explanation is needed, give one.

Never be universal in your comments. “These are statements that tell you something about an entire category. An example: All dogs are loyal. This statement relates two categories and tells you that everything in the category of dogs is also in the category of loyal things. You can consider this a universal statement because it tells you that loyalty is a universal quality of dogs.” 7 Anyone who has ever owned a dog knows that is not true.

Always remember to simplify your answers for digestion by the jury. “Make sure that you only answer the question you’re asked. Don’t ramble. Once you’ve answered the question, stop. Wait for the next question. It is usually a good idea to answer as many questions as possible with a yes or no answer. Be short, but be complete. If you’re asked to explain a certain answer, do so. Take as long as you need, but when you’re finished don’t go on to something else.” 9

There are many seminars specifically designed to address these matters. These training courses help alleviate the natural fear of speaking in public and reinforces a thought process to include organizational skills, how to be a better listener, how to speak with great diction, to be alert at all times – specifically to only answer the question as it is asked. It is not the intent of this article to address all the fine points of courtroom testimony but rather to offer an overview of the testimonial process. 5

Closing Statements

The burden of proof in a criminal trial is the obligation to prove allegations which are presented in a court of law. Under the Latin maxim necessitas probandi incumbit ei qui agit, the ordinary rule is that “the necessity of proof lies with he who complains.” 8

“The truth is very simple. You never get into trouble by telling the truth. Before you testify you will be sworn to tell the truth. Make sure that you do. If you have questions about certain areas of your testimony or if you’re worried about “how” to say something, ask your attorney. If you are concerned about whether to say “the cup is half full” or “the cup is half empty”, ask your attorney. Deciding how best to say something is not wrong if it is still the truth.” 9 Remember, no matter what – always tell the truth.

RULES OF EVIDENCE, ARTICLE VI. WITNESSES
Rule 603. Oath or Affirmation Before testifying, every witness shall be required to declare that he or she will testify truthfully, by oath or affirmation administered in a form calculated to awaken the conscience and impress his or her mind with the duty to do so.