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FLUSHING THE FEAR


January 20, 2016
By Jason Pilon

Testifying in court can be a difficult and nerve-wracking process, even for the most experienced police officer and seasoned “professional witness.” The courtroom remains a strange and mysterious realm that few wish to venture into and even fewer ever truly understand.

Just like other aspects of policing, however, training is key and often obtained on the job as much as in the classroom. What follows are a series of anecdotal tips and suggestions from a prosecutor designed to help you prepare for and perform your best in the courtroom.

After prosecuting a variety of offences in various locations over the last 18 years, I’ve seen my fair share of strange things and unusual interactions with people involved in the criminal justice system. One particularly regular instance stands out – not only due to its relative frequency but also because of the way it always seems to present itself. Invariably, it goes something like this.

I have an upcoming trial (the nature and number of the charges are unimportant). I’m told that a police witness wishes to speak with me (often urgently) “about the file” – no further details are provided.

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I’m always struck by how worried and concerned the officer looks when I engage them in informal chit chat to: i) try putting them at ease and ii) attempt to dispel the “dark clouds” that followed them into my office. The obligatory and brief off-topic discussions is followed by apologies for “bothering me” because they know that I’m a “busy man.” I assure them it’s absolutely no bother to me and part of my job to meet with witnesses, then immediately ask the obvious and necessary question: “So, what’s up?”

Next comes the loss of eye contact coupled with a deep breath, followed by a long sigh as the officer drops all pretences and defences, lays themselves bare, opens their soul, and, in one salient and cathartic moment blurts out their deep, dark secret to me. “Well… the thing is… that… I’ve never testified before…”

I had to learn to resist smiling at this moment, but not because I found the revelation funny or the officer’s obvious distress in any way even mildly amusing. It’s the juxtaposition of the moment that always causes me to smile (now, only inwardly).

There sits the officer, instinctively possessed of that unique character which promotes an innate sense of right over wrong, enabling them to run directly towards danger when the rest of us run frantically away. He/she is usually bestowed with many of the attributes most people envy and aspire to (e.g.: youth, physical size and strength, intelligence, energy, etc.), supplemented by years of training and an ever-increasing array of tools of the trade.

In short, despite possessing every trait necessary to handle whatever may come their way in their unusual and dangerous work – and despite appearing absolutely impervious to any form of challenge to them or their authority – there they sit uneasily in one of my client chairs, weighed down by their size, numerous use of force options and the stress of having ‘confessed’ to me their ‘virginal innocence’ in the world of courts and testifying.

I immediately try to lighten the mood, invite them to raise their weary head and assure them that: i) I’ve never testified either (and hope never to have to); ii) testifying is a normal and expected part of policing; iii) everything will be all right; and iv) I’ll try to be as gentle as I can since it’s their first time.

Now I must confess to long having trouble reconciling how this apparently fearless and omnipotent individual, so well equipped and trained, could possibly be, even for a moment, afraid of anything – let alone something as ‘insignificant’ as a court room. The risk of harm is significantly less than that accompanying other ‘mundane’ tasks in their job – anything from a ‘simple’ traffic stop to kicking down the door of a drug house.

That was my thinking – at least until I remembered one thing and experienced another. I too have been nervous and/or scared going to court, despite numerous appearances, and simply learned to manage that fear and apprehension by adopting techniques which boiled down to a combination of experience and preparation.

I also remembered my first ride-along and how scared I was just being alongside police officers in their ‘office.’ Watching them dealing with shady characters in dark alleys, I wondered how they could be so calm. They are scared, I was told, but have found a way to function in that milieu by also relying upon a combination of training and experience.

With all that in mind, I offer the following list of ten things officers can do before, during and after testifying to make them better witnesses and, by extension, improve the prosecution’s presentation of the case.

{Before}

1) Adopt the proper mindset: As with anything else in life, the best way to start something is to begin with the correct mindset. Officers need to not only accept the inevitability of court but embrace it as they would any other less than enjoyable aspect of the job. Accept that the matter will eventually make its way to court.

Appreciate that your duty may include testifying about your role in the investigation and prosecution of the file. Adopt a mindset that it’s ‘our file’ and not ‘the Crown’s file.’ Realize that you may be criticized as a necessary adjunct to the process of ‘searching for the truth.’ Resolve to guard yourself against being criticized in areas where you can avoid scrutiny.

Remember that preparation is key and starts at the scene. When the dust has settled, it’s time to properly record the many observations you’ve made for posterity’s sake. The more effort you put into your notes at the forefront of the investigation, the better you will be able to testify (several months or even years down the road) to what you did and didn’t do and why.

2) Courtrooms are classrooms: When the consequences of failure outweigh the benefits of learning to do things on your own, watch someone else before trying it – especially the first time. I’m a big believer in learning from my own mistakes and (even more) learning from the mistakes of others.

Watch colleagues testify every chance you get. Learn the difference between direct and cross examination and the mechanics and logistics of how evidence is adduced in court. Get comfortable in your future surroundings. The ‘bad news’ is that lawyers have a language, procedure, and forum that is foreign to the untrained legal eye and ear. The ‘good news’ is that free classrooms are open to the public in courtrooms across the country.

Rather than sit in the officers’ lounge telling (and re-telling) war stories, spend that time watching colleagues and other witnesses endure a “trial by fire” so that when their time comes, you’ll know how to ‘dance between the flames.’

3) Review your notes often: Always remember, they are YOUR notes. Take pride in that fact and make sure you review them thoroughly and often. You should know them inside and out and NOBODY should EVER know them better than you. Nothing is worse than a befuddled or confused officer blindly flipping through notes (obviously for the first time in court), searching hopelessly for the answer only to be directed to it by the Crown or (even worse) defence counsel. Remember: first impressions also matter in court.

4) Critically review your notes: This is a necessary adjunct to the preceding tip but involves a separate consideration. Simply put, not only must you review your notes to assist in remembering the events in question, you should look for weaknesses where you are susceptible to criticism and prepare yourself accordingly.

Lawyers are trained to look for and exploit ‘chinks in the armour’ of witnesses. There’s no reason why an officer can’t do the same thing in reverse by identifying those same areas before testifying and mentally reinforce those ‘weaknesses’ in anticipation of the inevitable attack. You wouldn’t ignore a fault in your body armour so don’t ignore problems in your notes and hope no one will notice. In court, just as in life, anticipating the other side’s next move is the best way to stay in the lead.

5) Meet with the Crown: As a witness who may be needed to testify on several different things, it’s essential to know precisely why you’re being called to testify so that you can properly focus your pre-trial preparation/review of your notes. In other words, as an essential link in the chain or piece in the (proverbial) puzzle, it’s always important to meet with the prosecutor beforehand to learn what ‘verse you’re expected to contribute to the play.’

This should not be confused with ‘wood shedding’ (otherwise known as ‘impermissibly coaching of a witness’). Knowing the areas you’re expected to testify on is not the same thing as ‘telling you what to say’ in relation to those areas. The former is permissible and a proper exercise of pre-trial preparation; the latter is highly inappropriate.

Finally, don’t be late for court. Show up early and demonstrate your eagerness to be part of the process that you started.

{During}

6) Tell the truth: Many witnesses have asked me (always in hypotheticals) what they “should” say in response to certain questions. My answer has always been (and always will be): “Tell the truth.” Normally, this elicits a little laughter to preface what they think I will say next but I have nothing else to say. The truth is always the right answer.

If the truth is yes, say yes; if no, say no. If the truth requires more than a simple yes or no, then elaborate as necessary. ‘I don’t know’ or ‘I don’t remember’ (if true) are also perfectly acceptable answers. No witness (even a police officer) is expected to know and/or remember everything. All witnesses are assessed on a combination of reliability (AKA accuracy) and credibility (AKA truthfulness).

While a reliable witness must also be honest, a credible witness is not necessarily always accurate in what they say. What’s important to take from this is that your credibility is the most important thing you have going for you. It is hard to obtain, very easily lost and, once lost, is unrecoverable. No one case is worth any witness being ‘loose with the truth.’

7) Answer the question and respond to the suggestion: Reliability and credibility often separates a good witness from a bad witness. Most questions are asked for a reason and with a certain expected response. The reason is to advance and/or sustain a particular point the advocate is trying to make.

While a witness is required to answer the question, they must also be alert to the suggestion that is or will try to be made. Answering questions is one thing, being blindly lead ‘down the primrose path’ towards calamity is quite another.

If the suggestion is correct and naturally follows from the answers to the questions, then the witness should follow along with gusto. If, however, the suggestion or impression is not correct in the opinion of the witness who experienced the events first hand, he/she should be equally quick to correct the impression wrongly being made to the trier of fact.

8) Remember the Three Little Pigs: I always remind police during training of this well-known fairy tale, along with my own slight retelling, to establish the point I’m trying to make. In short, if you present yourself as a ‘straw house’ in court (e.g.: wishy-washy, non-committal, easily swayed, etc.), lawyers will no doubt try to ‘blow you down.’

On the other hand, if you present yourself as a ‘brick house’ (e.g.: intractable, obstinate, unyielding to any suggestion), lawyers will have no difficulty “blowing past” you as you stand still. Either way, the trier of fact will be unwilling or unable to place any weight on anything you say. A witness should strive to be the testimonial equivalent to a ‘stick house,’ firm in their foundation but able to sway with the prevailing winds of reason and common sense.

9) Stay for the whole trial: Just as in life, you should do your best to finish what you started when you’re in court. The importance of knowing your piece will only be amplified when you can see the finished puzzle. Too often, I see officers come and go as quickly as possible and then lament the result without knowing how and why things did not go as planned. Once a mistake is caught, it’s much easier to avoid it happening again.

Judges will often indicate in their decisions how the officer could conduct themselves better the next time. Unfortunately, not being present for those instructions and/or hearing them second hand, days/weeks/months later does not lead to overall improvement. Improvement translates into greater job satisfaction in what can be an otherwise thankless job.

Finally, victims and witnesses who are truly involved in the process invariably appreciate officers who stay with them from complaint to completion of the trial.

{After}

10) Debrief with the Crown: Medical professionals conduct ‘Morbidity and Mortality Conferences,’ which are designed to be non-punitive peer reviews of mistakes that occurred during patient care. The goal is to create an environment where doctors and other practitioners can learn from each other’s mistakes and modify their practice with a view toward preventing these errors from happening again. This improves the system and process as a whole.

Early on, I instituted a similar informal conference with officers after a trial to discuss ‘the good, the bad, and the ugly’ with a view toward improving my and their performance. These have always been beneficial to me and extremely well-received by police. The best way to keep doing the right things and stop doing the wrong things starts with identifying which is which, followed by knowing how to do the right thing the right way in the future.

{Final analysis}

Whenever I get nervous or scared about my next day in court, I take solace from the words of Field Marshall Bernard Montgomery (a professional soldier who often faced danger during his long career with the British Army):

I also remember a quote from Mark Twain:

In the final analysis, testifying in court, just like other important aspects of policing, is a discipline that can only be mastered by a combination of proper preparation coupled with the right amount of experience.

{Disclaimer:} The opinions expressed are those of the author alone and do not necessarily represent the position of the Ministry of the Attorney General.

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Jason Pilon, B.A., LL.B., is an assistant Crown Attorney for the United Counties of Stormont, Dundas & Glengarry. He has presented block training to several police forces and has presented at the Crown Summer School Homicide Course for the past four years. Contact: jbcpilon@gmail.com