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BEING A GREAT WITNESS

2350 words – MR

Excellence in giving evidence – Tips for new police officers

by Doug LePard & Michaela Donnelly

{Introduction}

A trial is the final step to achieving justice and the quality of your evidence can make the difference between a conviction and an acquittal of a guilty person. Becoming an excellent police witness takes practice, a commitment to continuous improvement and rigorous preparation for every case.

It is important to understand that, while this guide is about giving evidence, your success as a police witness begins with the quality of your investigations, note taking and report writing. No matter how articulate and prepared you are for court, if you have not conducted a thorough and carefully documented investigation that addresses both the elements of the offence AND the potential defences, you and your case are vulnerable at trial.

While it is sometimes tritely said that it is “easy to tell the truth,” there is much more to being an excellent police witness. The following is a brief series of tips to help you get started in achieving that goal, but is not intended to be an exhaustive guide.

{Being a great witness – The basics}

<> The key to being a competent and confident witness is “preparation, preparation, preparation.” You need to know every word in your notes and report; this will make it very hard for defence counsel to trip you up or try to manipulate you.

<> Most police officers need to “refresh” their memory before they attend court to give evidence. If you regularly review your Reports to Crown Counsel for matters pending trial, you will never need to “refresh” your memory. The case will remain fresh in your mind and you will eventually have every word virtually memorized. <1> Your recollection of investigations will be unassailable and you will only need to refer to your notes for very limited purposes (e.g., a serial number, to read notes of a suspect field interview, etc.). Be sure to do this sort of thorough review before your pre-trial interview with Crown so that you can both get the most out of it.

<> Consider how much of the evidence you should review. If you were the lead investigator or report writer, you ought to be familiar with all of the evidence gathered. If you played a smaller role, you should not review the statements of other officers or witnesses whose involvement mirrored your own. If they saw something that you did not, or described something differently than you did, you may either be tempted to alter your evidence as a result, or their statements may unconsciously influence your memory. You should also use caution in reviewing photographs you did not take or were not present for, particularly booking photographs of the accused which you might wish to use as a means of refreshing your memory for identification purposes in court. Talk to the trial Crown or a senior officer first.

<> With excellent preparation, under direct examination, you should be able to give virtually all of your evidence with very little prompting from Crown. <2> That doesn’t mean you WILL give your evidence without interruption, because each Crown counsel will decide how they want to present it, only that you need to have that level of preparation. Under cross examination, it will be very difficult for defence counsel to mislead you by suggesting something “close but different” to what is in your report to gain advantage if you can immediately correct them with accurate information.

<> If you are uncertain about testifying, have had little experience or the investigation is more complex than you have dealt with before, seek out the trial Crown BEFORE the trial date. Ask them if you can arrange a pre-trial interview or even a phone conversation before the trial so that you can seek advice and ensure you’re well-prepared. (Don’t leave it to the morning of trial when the Crown may only have a few minutes to speak with you.) Ask the Crown, “What sort of areas should I focus on in my preparation? What sort of questions will I be asked in cross examination?” This is particularly important if defence counsel is going to challenge your grounds for a search, for example, or the admissibility of a statement that you took from the accused. If you are uncertain how to articulate certain evidence, the trial Crown may be willing to provide you some careful guidance to assist you. You could also seek advice from a trusted police officer who is an experienced witness.

<> Demonstrate your professionalism and confidence from the minute you walk into the courtroom and display it at all times until you leave. If you appear tentative, overly nervous, unprepared or cavalier about being a witness, you will damage your reputation and credibility and your cases will suffer the consequences. Conversely, if you build a reputation for excellence, that will count in your favour. <3>

<> Under direct examination, give your evidence chronologically – you are telling a story. Be truthful, accurate and FAIR at all times in describing facts (not opinions, except when asked). That is the reputation you want to build with Crown, defence counsel and judges. Your evidence at each trial AND your reputation will dictate the way you are treated and the way your evidence is viewed.

<> When you give evidence, whether under direct or cross examination, listen carefully to the question, think about your answer, then direct it to the judge/jury in a clear and confident voice. Do not mumble or trail off at the end of your sentences. Speak strongly enough to be heard by everyone in the courtroom. Use “active voice” (“I searched the accused”) rather than “passive voice” (“The accused was searched by me”) – it is more powerful and shows commitment to your actions. Do not try to chastise the lawyer who seems to be asking the same questions over and over by starting your answer with “As I have already said…,” “As I said previously” or, worst of all, “I think that I have already answered that question.” Your job is to answer the questions asked – trust that the Crown will object if the questions are inappropriate.

<> Speak at a moderate pace and respect the judge’s ability to keep up with note-taking, especially when relating such things as a suspect’s statements. To do this, you need to watch the judge. He/she will appreciate the courtesy and often will nod or say “go on” when ready.

<> Some people have a habit of finishing a declarative statement (“I searched the accused.”) with an upward-rising inflection (“I searched the accused?”), making every statement sound like a question. This will not instill confidence that YOU are confident in your answer – avoid this manner of speaking!

<> Do NOT be argumentative with defence counsel or interrupt their questioning, no matter how run-on and meandering it might be, how much they may try to rattle you or how abusive they may seem. Their job is to poke holes in your evidence and shake your credibility. YOU can control how well they do.

<> Defence counsel may try to rush you into answering without thinking. Don’t allow yourself to be bullied. Pause to think if you need to and then answer only the question asked.

<> If defence counsel has asked multiple questions, or hasn’t asked a question at all, politely ask for clarification so that you can answer properly.

<> Beware of being led into minimizing or exaggerating your experience or qualifications, or you may be setting yourself up for a fall. Just provide an accurate answer without embellishment and you will be safe.

<> Do NOT feel compelled to give a yes or no answer, even if that’s what defence asks for (or even demands). This is not TV and you are ENTITLED to provide context for your answer so as to inform rather than mislead the court by giving an out-of-context answer. For example, defence counsel might thunder at you, “Isn’t it possible that…?!” Almost anything is “possible,” but appropriate answers might be simply, “Yes,” or “I think it’s extremely unlikely because…” or “No, it’s NOT possible. I am certain of what I saw because…”

<> If you’re asked multiple questions within a question, clarify which question they want answered.

<> There is a myth that lawyers already know the answer to every question they ask. Perhaps they are taught that they SHOULD, but I can assure you they do NOT. Lawyers will often go on fishing expeditions, suggest “facts” hoping you will “bite” or simply be completely unprepared or on the wrong track. Your job is to educate the court by providing accurate information; sometimes that involves correcting defence counsel. <4>

<> While you are not there to entertain and you certainly don’t want to be seen as not taking your role seriously, it is perfectly alright to smile when appropriate and even to occasionally use humour where it makes sense in giving your evidence. This will come with experience, but just know that a pleasant, engaging, likeable witness is much more compelling than one who speaks in a monotone and appears devoid of personality.

<> You have probably heard police officers tell you to leave the courtroom as soon as you have finished your evidence and even (shockingly) make disparaging remarks about the trial process. If you want to learn to be an excellent witness, ignore them! When possible, try to remain in court after you give your evidence to:

hear other police officers give evidence to see what goes well and what doesn’t (and to see the difference between good police witnesses and not so good);

see what the defence strategies are;

hear the final submissions of Crown and defence counsel;

hear the judges’ decisions (they no doubt will comment on your evidence);

let the judges and Crown see you’re interested and care about the outcome; and

speak to the Crown if they have time to give you feedback on your evidence (and investigation), or to arrange for another time to do so if there isn’t a break after your case. Most Crown counsel will be pleased to be asked and to help you and this is very important to ensure you don’t repeat mistakes or miss opportunities for improvement without even knowing it.

{Conclusion}

Giving excellent evidence is an important part of every operational police officer’s job. Being an excellent police witness begins with the quality of your investigations and documentation, requires excellent preparation and then is completed by being a fair, objective, respectful and knowledgeable witness, even under stressful circumstances. To use a football analogy, it doesn’t matter how many times you get the ball to the one-yard line if you can’t get it into the end zone. Investigations and arrests are the same – no matter how good you are at “catching the bad guy,” if you can’t finish the job by giving excellent evidence, you cannot be a successful police officer. With an understanding of what’s required and a commitment to continuous learning and practice, every police officer is capable of becoming an excellent witness.

Foot Notes:

1. For example, upon receiving each court notification, you could print your reports and review them regularly prior to the pre-trial interview and trial – the more complex the case and/or your involvement, the more you should review them. Since it will be many months before you go to trial (unless it is an in-custody case), you will have read your reports multiple times before you give evidence.

2. I once watched a large and very imposing sergeant with a booming voice give evidence on an impaired driver. After he was sworn in, Crown asked him his first question to begin his evidence. In a confident and strong voice, he described in detail his entire, thorough investigation from start to finish including times, observations, suspect statements, the demand, BTA readings, etc., without Crown (who was smiling like the proverbial Cheshire cat) asking another question. I could see defence counsel wilting in his chair. By the time it came for cross examination, he stood up, said weakly, “No questions, your Honour” and threw in the towel.

3. One now retired judge was known to start reading a newspaper after trusted police witnesses finished their direct examination, indicating to the defence counsel that perhaps they were wasting their time with cross examination.

4. When I was a junior constable and learning as much as I could about giving evidence, I watched a legendary drug squad detective giving evidence. In the voir dire, he described how he asked a person he had arrested for PPT how much he was selling the seized drugs for (to establish the “for the purpose of trafficking” element) and the suspect replied with a dollar amount. In cross, defence counsel asked him, “Isn’t it possible you said, ‘How much do the drugs sell for?'” The detective replied strongly, “No, that is NOT possible.” Defence counsel then asked in a contemptuous and condescending tone (not realizing he was about to be handed his butt) how he could be so sure. “Because I have been in the drug squad for many years, am a qualified expert in drug trafficking and I know EXACTLY how much these drugs sell for,” the detective replied. “I asked him how much HE was selling the drugs for.” The accused was convicted of PPT.

BIO

Dep/Chief Doug LePard is a 32-year member of the Vancouver Police Department who has given evidence at every rank served in, totaling hundreds of occasions. He completed 14 days of cross-examination by multiple lawyers at the Missing Women Inquiry in 2012 on his investigative review and many thousands of pages of related documents. He was described as the best witness they had ever seen.

Ms. Michaela Donnelly is a 16-year Crown counsel, first as a federal prosecutor and now with the provincial crown in Vancouver. She does trial work in the provincial and supreme courts and has achieved success in the most challenging of circumstances, most recently in a notorious case involving the deaths of two teenage girls. She also finds time to contribute to police training.