After 11 years as a Los Angeles County Deputy District Attorney, I think I’ve learned enough about the criminal justice system to intelligently comment on it. I’ve been in the trenches, I know what happens in court, and let me tell you, it isn’t pretty.
I want to start out by sharing a little secret with you: You will always know what I am thinking; subtlety has never been my forte. Therefore, I can no longer sit idly by and watch officer after officer bury themselves on the witness stand. I love you all far too much to let this continue.
I also can’t bear to see another guilty defendant walk because an officer was ill prepared, didn’t care or wanted to take it outside with the defense attorney. It’s time to strip down, get real and talk candidly about what needs to change.
I preface this by stating, this is not just my opinion. This is based on acquittals and interviews of jurors on real cases. For example, in 2008, a jury flat-out walked a defendant charged with contacting a minor on the Internet for sex in a case that should have been a slam dunk. All the evidence was memorialized in Internet chat logs, computer forensics and a videotaped confession. Not to mention, the footage from a production company that was documenting the whole exchange for a future television show. Yet, the jury walked the defendant right out the door.
Why? Because they hated the police officer who conducted the undercover operation. They thought he was smug, evasive and untrustworthy. So, even though the whole operation was memorialized by unalterable evidence, meaning they didn’t even have to like the officer to believe him, they walked the guy.
Police officers, detectives and field trainings officers—all witnesses for that matter—need to stop walking into courtrooms with no idea what their task is. The problem here should be obvious. Just as a SWAT officer would not go into a SWAT operation without a thorough understanding of the goal of the mission, nor should any police officer go into court without an understanding of the goal of the process.
Mission No. 1 in testifying in a criminal prosecution is letting the jury like you. If you think that your job as a law enforcement witness is to just regurgitate the facts, you’re in for a big surprise. It's just as important to win over the hearts and minds of the jury as it is to give them the facts. Liking you is half the battle in believing what you say. And, believing what you say is the other half of getting the guilty guy convicted.
It's no different than a prospective employer meeting you for the first time in the interview process. Do you think they really care deeply about where you see yourself in five years? What they are really looking for is HOW you answer that question. The subtlety of communication. Emotional intelligence. Your body language. Your tone and pitch. Are you a leader? Are you convincing? How well do you sell yourself? Do they genuinely like you?
The defense attorney knows this. That's why he is so desperately trying to agitate you, so that you come undone in front of the jury. That's why he is asking you ridiculous questions like, “Did you review your report? Is it a fair and accurate statement of the facts?” Most of you when you hear that question, I’m sure would like to respond, “No, #%$&*@# , I thought I’d write a totally inaccurate, unfair statement of the facts just to sink your client even deeper into the pool of guilt that he is already in!”
But, careful what you think, lest it translate into your testimony. To curse the defense attorney instead of understanding where he's coming from and being prepared for it will be the downfall of our case. He wants you to lose your cool so the jury will dislike you.
Remember: In most cases, the facts sink the client. The defense attorney knows this, too. Thus, he must respond accordingly and attack everything else. Attack you for leaving out little details, just to be able to call you sloppy and lazy when he argues the case to the jury. This effectively takes the focus off of the guilty client and puts it elsewhere. Like on you.
Once you understand this, you can respond accordingly. Instead of falling for the bait and letting the defense attorney get under your skin, you will keep your calm, cool, professional composure and remain a steadfast, objective, likeable witness who the jury likes and the defense cannot discredit.
This is just the first in a series of articles addressing your mission in trial. Letting the jury like you is phase one of the mission. Future articles will discuss the goals of direct and cross examination in the trial setting and other ways to effectively present your case in court.
I don’t profess to have all the answers, and I haven’t seen it all. There are hundreds, if not thousands of prosecutors all over the country who have seen and heard far more than I have—which for some, is probably more than they wanted to.
For now, please just remember: to go into court on any kind of case, no matter how simple it is, without a thorough review and understanding of the goals of each side is potential disaster. Times have changed, my friends, and if you hadn’t recognized that yet, you better recognize it now.
The criminal justice system is fraught with jury nullification, meaning, if they're looking for a reason to walk the guilty defendant, they will. Don’t let you be the reason. Keep your cool. Answer the questions as if it is still the prosecutor asking them. And, let them like you just as much as I do!