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Courtroom Demeanor (The following text is a paraphrastic transcript of one lecture at S.C.A.F.O.'s Fourth Annual Training Seminar held September 10, 1994)
Speaker CREGOR DATIG There are two rules to remember when you testify as a Law Enforcement Officer. The first rule is this: everything you do, everything that you say and everything that you wear in a courtroom is observed by someone. That's something a lot of us forget. Why is it that I can say this so easily? Let's assume we have a courtroom that is empty except for the necessary players in a criminal trial, no one is in the gallery. When you get up there to testify, how many people are going to be devoting their entire attention to you? Think about it. We have a judge, twelve jurors, plus one or two alternates--— that's fifteen people right there. (You can assume that every second that you are testifying at least one juror is watching you.) You have a defense attorney who is going to watch you for every sign of weakness and every flaw in the way you testify. You have a defendant who's life may very well be on the line who is going to stare at you. You have defense investigators who can be seated at the counsel table or in the back of the courtroom watching everything you do. If you add it all up, in just a garden variety criminal trial, there are at least eighteen sets of eyes watching you constantly as you testify. A lot of us forget that. NEVER FORGET. The second rule is every bit as important as the first. You should never assume that any attorney knows what he or she is doing. Never assume that a prosecutor knows what he or she is doing. Never assume that a defense attorney knows what he or she is doing. Why is that important? Well, we will talk about fear in a minute. When I was sitting at lunch today, I was kind of eavesdropping on some of your conversations and I kept hearing people talking about testifying as though it were one of the most terrifying things they could possibly imagine. We are going to talk about how to overcome that. Remember that you are the experts, not the lawyers. Unless you have an attorney, either prosecutor or defense, who makes a living in the same field as you do, you are the one who knows more about the field. Never forget that. Let the attorney prove to you that he or she knows what he's doing before you start getting scared, because there is nothing to be scared about. Let us talk a little bit about that horrible word that we feel before we go to court...nervous. There are two kinds of nervousness. The first kind is a natural emotional stress, sometimes I call it “putting your game face on”. I feel it right now. I felt it before I walked up here. Every good cop and every good prosecutor feels that feeling. It's that little sense of anticipation right before you go into battle. It's the anticipation, and that's a positive nervousness. Don't be afraid of that feeling, of the butterflies in your stomach. Welcome it. Then there is the other kind of nervousness, the bad kind, the fear of failure--—the fear that you're going to get on the witness stand and you're going to fail. You're afraid--—afraid that the defense attorney is going to make a fool of you. No defense attorney is going to make a fool of you unless you let him. You're afraid you're going to say something wrong, but we can always go back and fix that, that's nothing to be afraid of. You're afraid that you're just not good enough to carry the ball as an expert. Well, ladies and gentlemen, if you're not properly trained in your field, then you shouldn't be doing fingerprint examinations. If there is anyone who isn't properly trained, then that's the first thing you should tell the district attorney. A good district attorney can qualify almost any expert on anything. If you're scared and you think that you're going to fail, you'll get up on the witness stand and you will fail, because you're afraid, you're so wound up, you're nervous that you will say things wrong. How do you overcome this fear, the terror of the unknown? The best thing to do is to find out when an expert whom you respect (someone from your agency or from a different agency who has testified numerous times) will testify, and go to court and watch him. It's real simple. You learn from watching someone who has done it a lot of times. If you testify and you've been burned, and every once in a while that will happen, or you feel that you have screwed up, learn from the mistakes that you have made. Sit down and think to yourself, what did I do that got me burned, what trap did I fall into that got me burned, and don't ever let yourself get burned by that trap again. How to avoid getting burned? The key element is always preparation. You have to be prepared. If you are prepared, you will be confident. If you know your stuff, any little jitters that you have will only be the natural jitters from knowing that you have to get up and testify. They won't be because you don't know the material. Bring your report with you to court. Take your report with you to the witness stand. The first thing the prosecutor has to do is qualify you as an expert witness. Bring a resume or C.V. of training and experience with you to the witness stand. There is nothing that a juror likes more than to have an expert get up on the witness stand and, in answer to the district attorney's magic question, “Do you have certain specialized training and experience in the area of fingerprints that has qualified you as an fingerprint expert?”, the expert answers, “Yes, I do.” “Please tell us what that experience and training consists of.” Now you pull out your six page resume and, starting on page one, read your qualifications to the jury. What the defense attorney will typically do is to stipulate to your expertise, but the district attorney does not have to stipulate. A stipulation is an agreement between the defense attorney and the district attorney. So what I say is, “Your Honor, I appreciate counsel's offer but frankly, I would like this jury to hear Mr. Jones' expertise.” Bring your resume with you to court. If you have a briefcase, stick a couple of copies in your briefcase and give one copy to the district attorney before you testify and keep one copy for yourself.
PREPARING THE PROSECUTOR: It is not improper to talk to the district attorney about your testimony before you testify. The defense attorney may ask, “Didn't you discuss this case with the defense attorney, didn't the district attorney tell you the questions he was going to ask you and didn't you discuss any problems with the case?” The correct response to that line of questioning is, “Yes sir, I did discuss this case with the district attorney. I discussed my findings with the district attorney so that he would make sure that when I came to court, a fair and impartial version of my examination would be presented to the jury.” Review and prepare your exhibits. Jurors love stuff they can play with. In a fingerprint case you have the technology for those beautiful enlarged prints with all the little red arrows and numbers. Prepare your exhibits and show them to your prosecutor. If the prosecutor has prepared exhibits, ask him if he's going to have you look at any of the exhibits. There's nothing worse than when the prosecutor takes out that photo and asks you to identify that photo and you can't identify it. Also, make sure that the defense attorney sees any exhibits that you have prepared prior to the start of the trial. Never assume that the district attorney knows what to ask you. You have to tell the district attorney if there's something you want to be asked. Don't assume that the district attorney is going to know. You have to educate the lawyer.
An important area of testifying that is often overlooked is your physical presence and bearing in the courtroom. Let's talk a little bit about your attire. Someone is going to see everything that you wear. You have to remember that the first impression that the jury has of you is when you walk in through those back doors--—usually. But remember rule number one. Never assume that the first time a jury is going to see you is when you walk through those back doors. There are jurors in the cafeteria, in the hall, there are jurors everywhere. So when you arrive at the courthouse, from the minute you get out of your car, presume that a juror is going to see you. How are you going to dress? If you wear a uniform, the average juror will equate that uniform with patrol or traffic. So now you have traffic officers testifying as fingerprint experts. Gentlemen, you should dress conservatively, in dark colors. Ladies, wear a suit or a dark conservative dress. Do not wear high heels in court. Demeanor on the witness stand. Again, remember rule #1, someone sees everything. When you sit down in the witness chair, don't lean back but sit up straight and don't cross your arms.
TYPES OF ATTORNEYS: The second type is the aggressive attorney. He's in your face from the get--go, very confrontational with rapid fire questions. He tries to get you angry and once he gets you angry, he has you. Don't let him get to you, don't let him get you angry. Remain calm. The third type is the most common and he's the confusing type. He's the one that has no clue as to what he's asking you, you have no clue as to what he's asking you, so you try to help him by repeating the question the way you think he's asking you and answering your own question. If he asks a stupid question, tell him that you don't understand the question.
Remember that when you're called to testify, you are an impartial witness. You must maintain that appearance of impartiality. Never guess about something that you're testifying to. If you don't know the answer to a question, say that you don't know the answer or ask for the question to be rephrased. (Editor --— Unfortunately the last minute or so of Mr. Datig's presentation was lost in the audio recording. Regardless of our inability to present his closing comments, his remarks and thoughts are much appreciated.)
This article was originally published in “THE PRINT” |