The Truth, the Whole Truth, and Nothing But ... : a Police Officer’s Guide to Testifying in Court. 9780398082321 0398082324

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THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT ...

ABOUT THE AUTHOR D. W. Reynolds is a Homicide Detective Sergeant with the Birmingham, Alabama Police Department. He has also worked as a Robbery Detective, an Evidence Technician, and a Patrol Officer in his eleven years with the department. Sgt. Reynolds has earned a Bachelor of Science Degree and a Master of Science Degree in Criminal Justice from the University of Alabama in Birmingham. He is a certified instructor at the Birmingham Regional Police Academy. Sgt. Reynolds has extensive experience in the area of court testimony and has gained a reputation for being a most effective communicator from the witness stand. In this book, he shares the techniques that earned him that reputation.

THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT .... A Police Officer's Guide To Testifying In Court

By

D. W. REYNOLDS

CHARLES

C THOMAS· PUBLISHER Springfield • Illinois • U. S.A.

Published and Distributed Throughout the World by

CHARLES C THOMAS· PUBLISHER 2600 South First Street Springfield, Illinois 62794-9265

This book is protected by copyright. No part of it may be reproduced in any manner without written permission from the publisher.

©

1990 by CHARLES C THOMAS· PUBLISHER

ISBN 0-398-05656-0 Library of Congress Catalog Card Number: 89-29282

With THOMAS BOOKS careful attention is given to all details of manufacturing and design. It is the Publisher's desire to present books that are satisfactory as to their physical qualities and artistic possibilities and appropriate for their particular use. THOMAS BOOKS will be true to those laws of quality that assure a good name and good will.

Printed in the United States of America SC-R-3

Library of Congress Cataloging-in-Publication Data Reynolds, D. W. The truth, the whole truth and nothing but- : a police officer's guide to testifying in court / by D. W. Reynolds. p. cm. ISBN 0-398-05656-0 1. Evidence, Criminal- United States. 2. Police-United States. 3. Witnesses-United States. I. Title. KF9672.Z9R49 1990 345.73'06-dc20 [347.3056] 89-29282 CIP

This book is dedicated . .. to every defense attorney who ever taught me a lesson on the witness stand.

If the facts don't favor your client, argue the law. If the law doesn't favor your client, argue the facts. If neither favor your client, attack your opponent. - Abraham Lincoln If the attorney attacks the legality of your actions, know the law. If the attorney attacks the facts of your case, know the details. If the attorney attacks you, know the attorney's tricks. - D. W. Reynolds

INTRODUCTION

E

very day, in courtrooms all across the country, police officers take the stand and testify. It is part of our job. We are required to give testimony in cases ranging from parking ticket disputes to capital murder trials. Every time we take the stand, we are confronted with vollies of questions from attorneys. Prosecuting attorneys ask questions on behalf of the state and defense attorneys ask questions on behalf of the accused. Jurors listen to the answers to these questions from all the witnesses, then vote on guilt or innocence. That's the process of justice in a nutshell. There is a part of that process with which we, as police officers, have always had a problem; that's when our testimony is vigorously attacked by the defense counsel. Most officers don't understand why this attack happens or what they can do about it. That's because we have been operating under a set of misconceptions about testifying in court. Why do defense attorneys attack the officer's testimony with such freedom and license? Why do police officers feel that they are so powerless when questioned on the stand by the defense counsel? Is there anything the officer can do to control his own testimony? The answer to this last question is a resounding YES! This book offers a new approach to testifying in court, an approach which gives a police officer the power and freedom to testify as he has always known he should and wished he could! What is the source of this power and freedom? It has been there all the time, but we just didn't realize it. It's in the oath that any witness takes when he is called to the stand. When he is "sworn in," a police officer promises "TO TELL THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH." The responsibility and duty that this oath demands can be the very key that unlocks the chains we've been bound with for so long. It's time to take this oath seriously and to use it to our advantage in this one area of law enforcement that has been largely overlooked and under emphasized - testifying in court. My goal is for you to benefit from the four "E's" of this book-Enlighten, Vll

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The Truth, the Whole Truth and Nothing But....

Expose, Educate, and Equip. I will Enlighten you to the dynamics of what is actually happening in court and where you fit in. I will Expose many of the tricks and tactics (there is a difference between the two, and I will explain in a later chapter) used by defense attorneys against you in court. I will Educate you with new techniques of testifying and broaden your "range of response." Don't worry, there are no new skills for you to learn; all the resources and talents you need, you already have. All that's required is a new perspective on testifying. You will then be better Equipped to handle any trick or tactic used against you as you "TELL THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH."

ACKNOWLEDGEMENTS

I

am grateful to the many people who, over the years, have influenced my perspective on testifying in court. Some were judges, some were prosecutors, and others were defense attorneys. All played a part, either directly or indirectly, in the development of the techniques in this book. I am grateful to my fellow police officers who shared their agonizing accounts of courtroom experience with me. These techniques are for you. I am grateful to my wife and children whose patience, understanding, and encouragement have never waned. I want to thank my friends at Louie Louie's for listening to this cop ramble about a book I was writing. Their rational insights and anecdotal humor were invaluable. I am especially grateful to Melody J. Greene for her superb assistance in editing the manuscript.

IX

CONTENTS

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Page Introduction . ......................................... vii Testifying: The Least Liked, Most Important Thing You Do ............. 3 What's Really Going On in Court? ........................ 7 The Myth of the Yes or No Answer ....................... 13 The Set-Up .......................................... 17 The Unqualified Answer ............................... 23 On Whose Terms Are You Testifying? .................... 27 The Terror of A Transcript and the Technique of a Tape Recorder .................... 33 Indescribable Descriptions and Undefinable Definitions ..... 37 Ask a Stupid Question-Get a Sincere Answer .............. 43 Questions That Deserve Questions ....................... 47 The Improper Interruption ............................. 51 A Little Humor Is Healthy ............................. 55 Don't Get Lost in the Smokescreen ....................... 59 Ten Tips on Testifying ................................. 65 The Art of Intimidation vs. the Comfort of Confidence ....... 73 My Closing Arguments ................................ 77

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Chapter One

TESTIFYING: THE LEAST LIKED, MOST IMPORTANT THING YOU DO

I

sat nervously in the witness waiting room. I knew that I would be next to testify. What had begun as butterflies in the pit of my stomach this morning had now evolved into good-sized pigeons, all flapping their wings at once! This was because I dreaded court. I dreaded court more than I dreaded the dentist, filing my income tax, or a phone call from my mother-in-law. In fact, I would gladly substitute any of these unpleasant events for my predicament today. I had to testify. I heard the bailiff coming down the hallway. "Maybe they're taking a recess," I hopefully thought. The pigeons were really getting restless now. "Officer Reynolds," the bailiff called out, "they're ready for you now." I walked down the hall toward the courtroom, secretly praying for an act of God to intervene. The pigeons began to fight among themselves. I scanned my uniform quickly, making sure everything was in the right place, and I wiped the sweat from my brow one last time. Entering the courtroom, I felt every eye turn my way. Even the pigeons were scared as hell! I walked past the jury box, avoiding eye contact with them all, and stepped up to the witness stand. The judge said, "Raise your right hand, please. Do you swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth?" "I do," cracked from my parched lips. "Be seated," the judge ordered. As I took my seat, the pigeons all committed suicide right there in my stomach! I guess they didn't want to testify, either. This is how I felt as a young officer whenever I was called to court. These feelings are experienced by many police officers, even after years of testifying. Most of us would rather search a dark warehouse for an armed burglar than go to court. Why is this so? There are a number of legitimate reasons. 3

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The Truth, the Whole Truth and Nothing But....

A Fear of the Unknown This is a normal human response when we find ourselves facing any situation where we don't really know what to expect. A new police officer is especially vulnerable because he is stepping into an unfamiliar arena where he fully expects his lack of experience to work against him.

Court Is an Unpleasant Experience Anyone who has ever taken the witness stand can attest to the fact that going to court is not fun. Having to sit in the "hot seat" and answer questions while attorneys, spectators, jurors, reporters, the judge, and the defendant all look at you would expectedly make a normal person uneasy and a shy person contemplate suicide (like the pigeons)! Your credibility, character, and reputation are on the line. It is an especially unpleasant experience for a police officer because he is held to a higher expectation of expertise than is a citizen who is merely telling what he saw, heard, or did. A police officer is rightfully expected to be able to legally justify his actions, because what he saw, heard, or did is governed by more laws than any of us in the police profession can possibly comprehend.

The "I've Been Burned Before" Syndrome The first time I went to the dentist ... it hurt! The second time I went to the dentist ... it hurt! Every time I go to the dentist ... IT HURTS! Many officers feel the same way about court. "I've been burned before," is one of the most common (and accurate) statements you'll hear from police about their court experiences. Defense attorneys have "put us on the spot," "raked us over the coals," "reemed us out," "had us for lunch," and "chewed us up and spit us out." It's no wonder we expect to be misused every time we take the stand.

Lack of Control Over the Situation Police officers are taught to always be in control. People are more comfortable when they have some control over the forces around them. I can think of nothing more terrifying than the feeling of being totally controlled and manipulated by persons or forces that are completely

Testtfying: The Least Liked, Most Important Thing You Do...

5

outside the scope of my influence. Rape victims frequently report that it was not the actual forced sexual act that scared them the most; it was the terror of being completely dominated by another person. This same phenomenon is felt on the witness stand (though certainly not to the extent of a rape victim). We have no choice in whether or not we come to court. We were subpoenaed. We can't get up and walk out until the judge excuses us. We have no control over the questions being asked of us, how they are asked, or the conduct of those asking. It seems that there's very little we can control once we take the stand, but this is actually a myth! By the end of this book, you'll realize that you can control much more than you thought possible!

Lack of Training When I was a recruit at the Birmingham Police Academy in 1978, I was trained in all the basics of good police work, twelve weeks worth of training, but no one told me what to expect when I got to court. Oh, I was taught all about the steps that a case would take in the criminal court process, the different parts of a trial, rules of evidence, and even a list of "pointers on testifying" that included always tell the truth, never lose your temper, speak clearly, be neutral, don't chew gum, and wear a clean uniform. All of these pointers are true and good to know, but they fall grossly short of adequate training. Not much has changed since then. A recent check with Police Training Academies around the country revealed little improvement. It is no wonder that many police officers view court as nothing more than a distasteful necessity of their job, and, subsequently, perform as poorly as they do. The significance of court is not stressed in rookie school, and many veteran officers never fully realize what court is all about. They see their job as ending after the arrest is made and the judicial machinery kicks in. Why should court be so important to a police officer? The following are just a few reasons that we need to consider: • It's in a court of law that society shows its disapproval for certain acts. This law is the thread that holds our culture together. • A citizen's future (and possibly even his life) is at stake. The jury's decision may not drastically affect the officer, but it will have profound ramifications on the defendant and his family. • The victim and the victim's family have an unquestionable right to

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The Truth, the Whole Truth and Nothing But....

the officer's absolute best efforts. If his testimony "blows the case," he cannot shirk responsibility by blaming it on a shrewd defense attorney. • Court is the culmination of all the officer's efforts, a sort of "final exam." It is here that the officer receives his most accurate critique. He can either have the satisfaction of a job well done or he can be lambasted and humiliated with his exposed inadequacies. • It's the whole reason you're a cop, the whole purpose of laws, to bring those who have been accused of breaking society's rules (laws) before a jury of their peers who decide innocence or guilt. In fact, testifying in court is probably the most important aspect of a police officer's job, but is the one area where he receives the least amount of training. Police officers expend enormous amounts of time and money to attend schools and seminars and study volumes of material on the subject of gathering evidence and information. We are the experts in that field. Criminal trial lawyers attend seminars and conferences and write and read volumes of material on the subject of controlling and manipulating witnesses and their testimonies. They are the experts in that field. Police officers are ill-prepared for what they face after they take the stand. Our training has made us great "fact-gatherers," but not-so-great "fact-presenters" in court. And that is my motivation for writing this book. Over the years, I have been called to testify many, many times, due largely to the fact that I was an evidence technician and later a robbery/ homicide detective. The nature and scope of the cases that I have been involved in resulted in my taking the stand more frequently and for a greater duration than many officers. I have developed techniques of testifying that have proven successful over the years and dramatically changed my perspective on going to court. I have found that testifying in court is one area of our work where we limit ourselves the most, though, if understood correctly, we actually have the most freedom. It is my most sincere desire and belief that the information in this book will not only make you a dramatically more effective "fact-presenter" in court, but the confidence you gain from knowing this information will . result in those pigeon-sized butterflies leaving the pit of your stomach and nesting in the gut of any defense attorney who sees you walking toward the witness stand!

Chapter Two

WHAT'S REALLY GOING ON IN COURT? Roles, Goals, and Rationales

T

he first thing we must do to become better fact-presenters in court is to gain a more accurate understanding of the dynamics at work in the courtroom. Many of our past experiences in court have influenced our present understanding of the judicial system. Our understanding results in our development of a perspective, or point of view, about court itself. This is evident when we hear people refer to court as "a game," "a circus," "a show," or "a joke," terms that identify the perspective of the user. I can certainly empathize with those who use such terms because I've had the same feelings before, but I'm not comfortable with these terms because of the danger that their usage entails. You see, your perspective about court dictates your approach each time you appear in court. If you think that court is nothing more than a circus, then your behavior and performance on the witness stand will probably resemble that of a clown. Court is much too serious a matter to be taken so lightly. Let's take a look at what really happens there. The actions of those in the courtroom setting are guided by their motivations. I believe that this can be best understood by examining the roles and goals of the participants. I am not talking about the traditional explanation of courtroom procedure. You can refer to any law book or Introduction to Criminal Justice textbook for that. I am talking about what goes on just beneath the surface of legal procedure and protocol. Let's begin with the judge. It is his responsibility to insure that the accused before him receives a fair trial, not a perfect trial, but a fair one. He rules on the admissibility of evidence and objections by counsel, and controls the flow of the proceedings. He explains the law to the jury. This is his role in court. What is his goal? It is to not have his decisions overturned by an appellate court. Judges don't like to have cases sent back to them for retrial or to have verdicts overturned by higher courts. A judge'S competence is critiqued when one of his cases is up for appel7

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The Truth, the Whole Truth and Nothing But . ...

late review. If he erred during the trial, the case gets sent back, and he looks bad, so that his actions during the trial are motivated by his goal not have the verdict overturned. When you understand the role and goal of the judge, you can see why he makes some of the decisions that he does. He interprets the law as he thinks the higher court has or will, and he applies it to the case in front of him with "appellate review" in the back of his mind. Remember this when he makes a decision or ruling in your case. Let's now look at the prosecutor. He represents the state, which is the victim in most cases. He is responsible for presenting the evidence against the accused to the jury. He is trying to convince the jury that the defendant is guilty. That is his role. What is his goal? Very simply, he doesn't want to lose the case. Prosecutors are critiqued by their conviction rates. Those with high conviction rates are promoted and given more responsibility and pay. Some even become politicians and run for public office. Others use their experience to become defense attorneys. The prosecutor's own concerns about the outcome of the trial are obviously more important to him than are your concerns. Thus, he may opt to plea bargain the case to insure a conviction. Remember this when a prosecutor handles your case. N ow we come to the defense attorney. He represents the accused and defends him in court. He is responsible for protecting the Constitutional rights of his client and for providing the "best possible defense" for his client. Let me use the words of a local prominent defense attorney in describing what his role in court is. He was questioned by a young boy in a group of high school students who had just observed a preliminary hearing in the District Court of Jefferson County, Alabama. The student asked the defense attorney what he would do if he knew his client was guilty. The attorney gave the standard answer about everyone having the right to a fair trial and defense counsel. The student was not satisfied. He again asked the attorney how he could defend someone that he knew to be guilty. The attorney again gave him the standard answer about everyone being innocent until proven guilty. The student was still not satisfied. He asked the attorney, "But what if he tells you he murdered or raped someone and you know he's guilty? How can you defend someone like that?" The attorney gave a most candid and truthful answer. He said, "Young man, you don't understand. The guilt or innocence of my client is not even an issue to me. What my job is, is to keep every single bit of evidence that I possibly can from the eyes and ears of the jury. That's my

What:S Really Going On in Court?

9

job." That's just about the best description of a defense attorney's role that I've ever heard. Where do defense attorneys derive their justification for keeping evidence from the jury? It comes from their legal logic of the concept "best possible defense." This logic allows them to legally manipulate you on the witness stand, distort your testimony in front of the jury, and confuse any issue that might adversely affect their clients. What is the defense attorney's goal? It is to win the case, of course. Just as prosecutors are judged by conviction rates, defense attorneys are judged by acquittals, dismissals, and reversals. Remember this the next time a defense attorney calls you a liar in open court and accuses you of altering evidence or abusing his client when he knows that you're really not, and that you really didn't. When he comes up to you out in the hallway after the trial, shakes your hand and says, "I hope you didn't take any of that personally; you know I was just doing my job," there is a chance he may really mean it! Now let's talk about the role and goal of the police officer. We are responsible for presenting legally admissible facts of our investigation or actions to the jury for their consideration. That is our role. Notice that our role is directly in conflict with the defense attorney's role. If his role is to keep evidence from the jury and ours is to present evidence to the jury, then there exists a very natural and understandable antagonism between us. Everything we are trying to say on the stand is evidence, once we say it. Defense attorneys are trying to keep that evidence away from the jury by any legal means available to them (and believe me, there are plenty of legal means available to them). So when they attack us on the stand, they are not attacking us personally, they are attacking us professionally. We should not respond personally, but professionally. The following chapters will show you how to do just that. What is our goal? It is to present as much legally admissible evidence to the jury as we can. You will see that not just your actions in the field themselves, but how you testify about those actions determines whether they are legally admissible. Let us now examine one of our common misconceptions about evidence and court testimony. Is there a difference in the two? We have been taught that evidence is what we gather in the field as we investigate a crime. This evidence can be physical or informational, but judges instruct juries that every person walks into a courtroom an innocent person, that the state must present evidence to convict. He tells the jury that nothing said in the indictment, nothing said by the judge, and nothing said by the attorneys can be considered as evidence. Only testimony

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The Truth, the Whole Truth and Nothing But . ...

from the witness stand can be considered as evidence, so that everything and anything that we have done on a case does not become evidence until we testify about it from the witness stand. It's just as important, if not more so, that we testify correctly about what we did and how we did it, as it is that we do it correctly in the first place! So why do we spend so much time and money on learning how to gather evidence and so little on learning how to present it? Our lack of training gives the defense attorney a distinct advantage when he questions us. How can we change this? Just as the legal logic in the concept of the "best possible defense" allows defense attorneys to use tricks and tactics identified in the next chapters, the legal logic in the oath that we take when we swear to "tell the truth, the whole truth, and nothing but the truth," allows us to develop techniques to get our evidence to the eyes and ears of the jury. The jury wants to hear the truth as much as we want to tell it! If we allow defense attorneys such a free hand in controlling our testimony, which is evidence, then we are not meeting our legal responsibility. Tactics, Tricks, and Techniques Attorneys attack our testimony through the use of tactics and tricks directed at us as we testify. There is a difference between the two. A tactic is used when the attorney has reason to doubt the truthfulness of the witness. He believes the witness is or may be lying and uses a tactic to expose the lie and reveal the truth to the jury. He may suspect that the witness is not being truthful for a number of reasons: conflict with earlier testimony given by the witness; conflict with testimony of other witnesses; the witness' demeanor on the stand; facts already known to the attorney; the witness' ability to see or hear what has been claimed; or a host of other reasons. In short, the attorney is trying to catch the witness in the lie. But the motivation is to reveal the truth. I have no problem with an attorney using a tactic to reveal the truth. A trick, on the other hand, is used when the attorney's sole aim is to make the witness appear to be lying, when the attorney, in fact, believes the witness is telling the truth, but the truth is damaging to his client. A trick is also used to distort the significance and manipulate the meaning of a witness' testimony when that testimony is damaging to his client, even when it is the truth. I do have a problem with an attorney using a trick to manipulate testimony. In my opinion, such trickery and deceit

What's Really Going On in Court?

11

mocks the very system that was created to be the one arena in society where truth is put on a pedestal! When defense attorneys attempt to use these tricks to distort and manipulate our testimony in front of a jury, we are not as powerless as we often feel. We are not mere pawns to be moved around in the game of strategy called court. We are witnesses and we have evidence to present to the jury. Our techniques of answering questions from attorneys will determine how much of that evidence will be heard by the jury, and that's what this book is all about-techniques we can use when we are confronted with tricks. A few words of caution are in order. Never use a technique that you are not comfortable using. Never use a technique to "get even" with an attorney. NEVER USE A TECHNIQUE UNLESS CONFRONTED WITH A TRICK. If you remember these basic rules, you won't have a problem in court. If you violate any of these rules, this whole approach to testifying may backfire in your face. I believe that this will become clear as you read the following pages. The remainder of this book exposes many of the tricks that you will be faced with as you testify in court and techniques you can use to testify more professionally. Before going on, I need to make one thing clear. This book is not a treatise on law or courtroom procedure. I am not a lawyer. This book is not a scientific study on the relationships of variables. I am not a scientist. Nor is this book an ideological examination of judicial philosophy. I am not a philosopher. This book is an instructional tool to be used by police officers when they testify in court, based on the reality of the judicial system as it exists. I am a police officer.

Chapter Three

THE MYTH OF THE YES OR NO ANSWER

S

omewhere along the way, we have been led to believe that we must answer most questions with a "yes" or "no" answer. This notion is encouraged by defense attorneys because it makes it easier for them to guide us in whatever direction they may be going with our testimony. But this notion is not founded in law. You may, and, at times should give more than a "yes" or "no" answer, even though the defense attorney would prefer that you didn't. Let me give you some examples of "yes" or "no" questions that only require "yes" or "no" answers. "Were you the first patrol officer to arrive on the scene?" "Were you working as a homicide detective with the Birmingham Police Department on July 30th, 1986?" "Did you knock on the door before you went in?" "Do you see the person in the courtroom today that answered the door when you knocked?" All of these questions can be answered satisfactorily with a simple "yes" or "no." They are straightforward questions about specific actions that you did or did not take. No problem. But what about when a defense attorney asks you a question in a "yes" or "no" format, but you know that there's much more to the answer than a simple "yes" or "no." In fact, you realize that by answering "yes" or "no," the truth of what happened is going to be distorted. For example, "Did you, or did you not, inform my client of his Constitutional rights prior to questioning him?" If you had a legally justifiable reason for not reading him his rights, and you simply say "no," then you have not told the whole truth. If the suspect wasn't in custody or being interrogated, or if you were only asking him threshold questions, such as, "What happened?" then you were not legally required to read him his rights. By saying only "no,"

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The Truth, the Whole Truth and Nothing But . ...

you give the defense attorney an opportunity to further distort your testimony by asking questions like "You had a Miranda rights card right there in your pocket, didn't you?" "You could have taken time to inform my client of his rights, couldn't you?" The technique I suggest in such a situation is to give your explanation for your answer before you actually give your answer. "Mr. Parker was not in custody, so, no sir, I didn't read him his rights." or "Mr. Parker walked up to me and started telling me what happened. I didn't question him. I just let him talk." This takes the advantage away from the attorney because you have given a reason for your actions before he can insert his own. Over the years, we have acquired the dangerous habit of giving the "yes" or "no" answer that the defense attorney wants, and then depending on the prosecutor to ask us to explain our answer. First of all, it may be some time before the defense attorney finishes his line of questioning and gives the prosecutor a chance to straighten things out. This can result in the appearance that the prosecutor is trying to cover for us, because the defense attorney has already made his point on the issue. We shouldn't place that burden on the prosecutor. He has enough to worry about during a trial without trying to keep up with testimony which we should be able to handle. This technique works with any question where the answer is more than simply "yes" or "no." My favorite response was when a defense attorney asked a police officer "Isn't it true that you hit my client so hard that you broke his nose in four places and he had to be hospitalized? Now, isn't that a fact?" The officer answered "Your client had my partner in a choke hold, trying to get his gun. So I hit him as hard as I could, as many times as I could, until he let my partner go! Then I arrested him and took him to the hospital." After you do this once or twice to a defense attorney, he will try to cut your answer off before you can explain. You'll hear something like

The Myth of the Yes or No Answer

15

''Answer the question yes or no, PLEASE! (in a stern voice meant to make you think you are under his authority) Don't let this intimidate you. The jury has already heard you try to explain, so, at least they know there's more to it than a simple "yes" or "no." At this point, you have a number of options. You can either respond "There's much more to it than 'yes' or 'no.' " (again, look at what you're telling the jury) or "May I explain my answer, please?" (a sincere desire to tell the whole truth) If none of these responses work, and you feel that you must answer affirmatively or negatively, then try to use another term for "yes" or "no," one that better describes the truth. "Of course" and "of course not" are my favorites. When you answer, "Of course, I did," or, "Of course not," then you have answered affirmatively or negatively, but you also have told the jury so much more. You have told them that there is a perfectly logical reason for your actions, and, they would understand if this rude attorney would just let you explain. I hope that you are beginning to see that you can expand your range of response to your own advantage. You can adapt this technique to any "yes" or "no" question where you feel that you are being manipulated.

Chapter Four

THE SET-UP

W

hen you are called to the stand, one of the first things you will be asked about is your qualifications and training. The prosecutor will ask you where you work within the department, for how long, any special skills you possess, and the training and experience you've had. He does this to show the jury that you are competent to testify about the matters at hand. You can expect these type questions from the prosecutor almost every time you testify. But when the defense attorney begins to ask you a series of questions about your qualifications, especially when he phrases them in a flattering way, LOOK OUT! YOU ARE BEING SET UP!! The Set-Up works like this. The attorney makes you look like the most qualified, best dressed, most educated, best trained, and most conscientious police officer he's ever seen. (And you agree with him!) Then, when he has you right where he wants you, he asks you a question that reveals something that you didn't do in the case. It may be the most insignificant thing in the world and have absolutely no bearing on the case, but he has now made it look like you overlooked something obvious that would have proven his client's innocence. This one mistake puts a dark cloud over everything else you have done and he is free to insert his own reason in closing arguments as to why you overlooked it. You may even be accused of framing his client! Let me give you an example of what once happened to me. I have numbered the questions so that we can refer back to them later. (1) ATTORNEY:

Officer Reynolds, you've already testified that you graduated from the Evidence Technician Training School, which is a twelve-week course taught by all kinds of experienced specialists. Is that right? OFFICER: Yes sir. (2) ATTORNEY: You seem to be a very sharp, well-trained young officer ...

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The Truth, the Whole Truth and Nothing But ....

OFFICER: Thank you. (3) ATTORNEY: I'll bet you finished pretty high in your class at that school. Do you remember where you finished? OFFICER: I finished third in my class. (4) ATTORNEY: I'm not surprised at all. I'm glad we have dedicated young officers like you on the force these days. OFFICER: Thank you, sir. (5) ATTORNEY: Let me ask you, Officer Reynolds, at that school you were taught all about how to locate, collect, and preserve physical evidence. Is that right? OFFICER: Yes sir. (6) ATTORNEY: And you certainly were trained in what to do with physical evidence when you find it, weren't you? OFFICER: Yes sir. We first photograph any physical evidence found at a crime scene, then we diagram the location of it, then collect it to be submitted for any examination that may be required. (7) ATTORNEY: That's right, and you certainly make a diligent effort at any crime scene to locate any physical evidence that you think is important in the case. Is that right? OFFICER: Yes sir. (8) ATTORNEY: And if you found a weapon at a crime scene, then I'm sure you would collect it, especially if there had been some kind of assault there, wouldn't you? OFFICER: Yes sir. (9) ATTORNEY: Officer, let me show you what's been marked in evidence as State's Exhibit No.3. I believe that this is a photograph that you took of the living room area in that house. Is that right? OFFICER: Yes sir. (10) ATTORNEY: And let me direct your attention to these items on the floor right here in your photograph. OFFICER: Yes sir.

The Set-Up

19

(11) ATTORNEY: Please tell the court, what is this one item lying right there in the middle of the floor? OFFICER: ... It looks like a fingernail file. (12) ATTORNEY: A METAL FINGERNAIL FILE, isn't that right, Officer? OFFICER: It appears to be, but I can't really tell from this ... (13) ATTORNEY: DID YOU COLLECT THIS WEAPON FROM THE CRIME SCENE OFFICER REYNOLDS, SO THAT WE COULD HAVE IT IN COURT TODAY? OFFICER: Well, no sir ... (14) ATTORNEY: I have no further questions of this witness (said in a very disgusted way.) In this case, the defendant was charged with murdering his wife. A witness in the house had told us that the defendant shot his wife as they argued. The witness had stated that the wife was not armed and no weapons, other than the defendant's gun, were found. The wife had her purse under her arm as she was attempting to leave when the defendant shot her. As she fell, her purse dropped to the floor, spilling the contents, including the fingernail file. I had not noticed the fingernail file when I examined the crime scene, and, even if I had, I would not have attached any significance to it, because the defendant had stated to the first officer on the scene that he accidentally shot his wife as they struggled over the gun. However, that statement had been supressed and the jury never heard it. The fingernail file only became significant when the attorney noticed it in one of my photographs and decided to imply that the victim was armed and his client shot in self-defense. And I helped him do just that. Could I have testified differently and done a better job of telling the whole truth? Yes I could. First of all, I should have recognized that the attorney was "greasing me" for the Set-Up, and not allowed myself to be caught up in the flow of his questions. Let's go back and see if we can come up with a better response. Question 1 - When he used the phrase "all kinds of experienced specialists," I should have corrected him by saying, "Not all kinds of experienced specialists, but instructors with specialized training in certain aspects of the field and varying degrees of experience." Not only

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The Truth, the Whole Truth and Nothing But ....

were my words more accurately truthful than his, but I also interrupted his flow of questioning by making him think about what I said. Question 2 -Nice comment on his part, but I should have said nothing. He is expecting me to say "thank you" as a sign that I am following the bait, and when I don't, it throws him off. I could have still graciously accepted a compliment without opening my mouth. Question 3 - I should not have revealed my ego here. He wants me to. Even if I were number one in my class, I could have said, "I passed all the requirements for certification." Question 4 -Again, I should have said nothing. Question 5 -Look at his words "you were taught all about how to ... ". He's wanting me to agree that I should know everything there is to know, when that's not accurate. I should have said, "I was trained in many areas pertaining to physical evidence, but certainly not all. " Question 6 - This question was too vague and general for me to answer as I did. I should have asked him, "What type of physical evidence are you referring to?" Or I could have answered, "It depends on the type of physical evidence involved." Question 7 -Look at his words, "any crime scene," "any physical evidence," and "that you think is important." He has grouped all crime scenes together and put all the responsibility for physical evidence on my shoulders. A more accurate answer would have been, ''All crime scenes are different. They contain different types and amounts of evidence, and I'm not the only one responsible for locating physical evidence at a scene. I am responsible for collecting any physical evidence found that the investigator deems important." Question 8 - I should have asked him to define what he meant by "weapon," then explained under what circumstances I would collect it, referring to my answer to number 7. Question 10 -He pointed out the items on the floor. I should have said, "You mean the contents of the victim's purse?" Question 13 -Look at his words, "this weapon." He gave me a golden opportunity to say, "No one told me that a fingernail file had been used as a weapon. If they had, I certainly would have collected it." Questions 9-14 - These questions would not have had the effect desired by the attorney because the jury would now better understand why I didn't collect the fingernail file! Again, you can see that your range of response is only limited by the best accurate description of the truth, not the attorney's plan for your

The Set-Up

21

testimony! But let me caution you. Overuse of this technique will make you look evasive. Do not use this technique in every line of questioning, but only where you recognize the Set-Up coming. Let common sense be your guide. r could fill this book with other examples of the Set-Up, but r hope you have the idea. Just remember, attorneys always do what's in their client's best interest at any given time. It's always in their client's best interest to make you look like an idiot. It's in your best interest not to let them.

Chapter Five

THE UNQUALIFIED ANSWER

Y

OU wouldn't dare answer a question that you weren't qualified to answer, would you? Oh, yes you would! But don't feel bad, we all do, and with an alarming frequency! You'll recall that I mentioned in an earlier chapter that police officers are expected to possess a higher degree of expertise than are civilian witnesses, especially in those areas that fall under the scope of our profession. This expectation works against us on the witness stand because we believe it too. Defense attorneys are keenly aware of this expectation and they use it regularly to trap us. I'll use an example that I demonstrate when I teach at the police academy. I pick one recruit and put him in a witness chair in front of the class. This accurately replicates how he'll feel when he goes to court and all eyes are on him. I play the defense attorney. The questioning usually goes like this:

ATTORNEY: Officer, you've recently graduated from the Birmingham Police Academy. Is that right? OFFICER: Yes sir. ATTORNEY: How long was your training there? OFFICER: Sixteen weeks. ATTORNEY: Sixteen weeks ... Did they teach you all about firearms at the Academy? OFFICER: Yes sir. ATTORNEY: They taught you how to safely handle a pistol, how to load and to unload ... OFFICER: Yes sir. ATTORNEY: How to clean a pistol and take care of it ... OFFICER: That's correct. ATTORNEY: You learned how to actually fire a pistol, and I'm sure you received extensive instruction at the firing range

23

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The Truth, the Whole Truth and Nothing But ....

OFFICER: ATTORNEY:

OFFICER: ATTORNEY:

OFFICER: ATTORNEY: OFFICER: ATTORNEY: OFFICER: ATTORNEY: OFFICER: ATTORNEY: OFFICER: ATTORNEY:

OFFICER: ATTORNEY:

in becoming proficient at shooting accurately and even when to shoot and when not to shoot. Is that right? Yes sir. And I'm sure they taught you how a pistol works, I mean how the trigger pushes the hammer back, then releases it and the firing pin strikes the center of the bullet and the gunpowder explodes and the gases push the projectile out the end of the barrel. Is that right? Yes sir, that's a pretty accurate description of what happens. And I bet you have to be able to name all the parts of a pistol, like the barrel, the backstrap, the topstrap, the cylinder, the ejector rod (I point to each one as I name it). You are familiar with all those parts and how they work, aren't you officer? Yes sir. I'm sure you are. You seem like a very conscientious young officer who knows his job (sound familiar?). Thank you, sir. You found a pistol out there at the scene that night, didn't you? Yes, I did. And this pistol has been marked as State's Exhibit No. 1. This is the pistol you found, is it not? Yes, it is. And this pistol has a trigger, a firing pin, a cylinder, and a barrel, doesn't it? Yes sir. Let me ask you something Officer, based on all that training you had during rookie school. If I loaded this cylinder full of live bullets and pulled the trigger, then this gun would expend a projectile out the end of the barrel, wouldn't it? Yes sir. I have no further questions.

The Unqualified Answer

25

That officer just gave an Unqualified Answer. He was not qualified to testify about whether that particular gun would fire or not. He had not test fired it, measured the trigger pull, examined the alignment of the firing pin with the cylinder, checked the cylinder to see if it would turn, checked the alignment of the cylinder with the barrel, or checked the barrel for obstructions. Even if he had done these things, he still was not qualified to answer unless he was an expert firearms examiner. The defense attorney knows that. He also knows that the prosecutor is going to call a firearms examiner who will testify that the gun had a faulty mechanism of some sort and would not fire. And you can bet that when the defense has his chance to cross-examine the firearms examiner, he'll say, "No questions." Then in his closing arguments to the jury, he'll say "You heard one State's witness testify that the gun would fire. You heard another State's witness testify that it would not. Who knows whether it would or not? I'm as confused as you are!" The officer obviously felt that he was expected, under the circumstances, to answer the question. You have to think before you answer any question whether or not you are qualified to say one way or the other. If you're not absolutely sure that you are qualified, you'd better not answer! So what could the officer have said? How about "I'm not qualified to say whether that particular gun would fire because I didn't examine it. I just collected it." or "You'll have to ask the firearms examiner that. It was turned over to him." Defense attorneys use this trick in almost every area of police work. Even as I was writing this chapter, I sat in on a trial to observe, and sure enough it happened. The defendant was charged with breaking into a house and raping and robbing a seventy-four year old woman. His fingerprints were found on the inside window ledge at the point of entry. The officer who lifted the prints had many years of experience, both in the field and in court, and he was asked if glass was an excellent surface from which to lift latent prints. He said that it was the "best he knew of." The defense argued, quite effectively, in his closing that this officer who had lifted "thousands" of prints over the years had said that glass was the best surface on which to find prints. If his client had climbed in the window, as the State alleged, why weren't any of his prints found on the

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The Truth, the Whole Truth and Nothing But ....

glass pane that he would have had to touch when he opened the window? Because he didn't climb in the window, the attorney argued. The defendant's prints were left on the inside window ledge when he visited the woman's son and leaned back against the window some weeks before. The officer gave the attorney that argument with his unqualified answer. Had the officer ever conducted scientific tests to determine if glass was indeed the best surface and under what conditions? He should have answered that glass can be a suitable surface from which to lift prints depending on a number of variables, including the amount of dirt present, the weather conditions, and the amount of oils on the fingertips. The officer knew this, but he did not think before he answered! So not only do we not say the things we should, often times we say things that we should not! Let's not make it so easy for defense attorneys to use our testimony to confuse the jury. This technique is simple. Don't give unqualified answers!

Chapter Six

ON WHOSE TERMS ARE YOU TESTIFYING?

A

nother favorite trick of defense attorneys is to hide key legal terms in questions. They're very good at this, and, if you're not careful, you won't even notice. They hide key legal terms that apply to almost everything you do, and they usually include an off-the-wall question that is intended to draw your attention away from that term. If you answer the question as they asked it, you have agreed to whatever legal term they have hidden! The entire case may very well hinge on that legal term. For example, they might ask you "Sgt. Reynolds, when you interrogated my client in your office that day, didn't he ask you if he could go to the bathroom?"

The attorney knows his client didn't ask to go to the bathroom, which is going to cause you to key in on that part of the question and give a quick response of "No, he didn't!" If you do that, you've missed the hidden legal term "interrogated," and agreed that you did interrogate him. What if he was not under arrest and free to go at any time and you were only questioning, rather than interrogating him? If this were the case, then you would not have Mirandized him, because it's not required unless the person is in custody and being interrogated. If you just agreed that you interrogated him, you may lose his statement as evidence. And if his statement is all you have, you may lose the case. Another example is "As you searched my client's apartment, did you notice that he was bleeding from an open wound?" Again, if what you did was not legally a search, and you answer, "Mr. Parker wasn't bleeding in my presence," then you have agreed that you searched. Maybe you were there because you received a call and he invited you in and you observed evidence in plain view. They even use this trick to hide nonlegal terms, terms that they use against you later. For example

27

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The Truth, the Whole Truth and Nothing But ....

"When you slung my client into the back seat of your police car, did you tell him what he was being charged with?" If you didn't sling him, don't agree that you did by answering that question. Another example

"When you called my client and insisted that he come to your office, you already had plans to charge him with murder, didn't you?" Did you insist, or did you ask him if he minded coming down to chat with you about something? The common use of this trick necessitates that you listen very carefully to every word and term in every question that you are asked on the witness stand! Always remember, every question is asked for a purpose. The purpose may not be revealed until the closing arguments, but, believe me, it's there. The technique to neutralize this trick is fairly obvious. First, you have to recognize the hidden term. Then, always address his term before you answer the question. For example, in my first example, I would answer, "I didn't interrogate your client, I only questioned him." Leave it right there-don't answer his question until he has addressed your statement. Usually, he'll say something like, "O.K., you questioned him." That leaves the attorney with only the second part of his question, which now is not so important to him. When you do this, he will sometimes forget what that second part was and move on to the next question. Sometimes when you use this technique he will get really bold and ask you something like "Oh really? You only questioned him? Why don't you explain the difference in questioning someone and interrogating them." I then say, "I'd be glad to," and give a lengthy discussion to the jury on the difference in confronting an unwilling subject with inconsistencies and outright lies in his story (interrogation), and merely asking someone what they know about the matter at hand (questioning). That attorney will never ask me to explain anything again. When an attorney uses a term like custody, suspect, arrest, search, witness, etc., make sure you understand what he means by the term before you answer any question about it. The legal meaning of some of these terms changes with new court decisions and his meaning and your meaning may not be exactly the same. If you answer his question without knowing his definition, you have agreed to his definition of your actions. For example

On Whose Terms Are You Testifying?

29

"The first time you talked to my client, he was already a suspect, wasn't he?" What is his definition of suspect? Does he mean that someone told you his client committed the crime, or did you think his client could have committed the crime, or had the investigation focused on his client, or what? I guarantee you, he is going to use that term "suspect" in some argument that you probably won't even hear, so before answering, ask him what he means by "suspect." Personally, I don't even like to use these words at all if I can help it, and I've even said that on the stand! There's too much of a chance that they'll be used against you in some way. I prefer to use everyday terms that juries can understand, like "I talked to him." (instead of interrogated) "I looked for evidence." (instead of searched) "I placed him in the back seat of my patrol car." (instead of arrest or custody) "He was someone who had information about the case." (instead of witness) Let the judge decide on the legality of what you did and which legal term to call it. You just testify with your own terms. Another trick defense attorneys use is to paraphrase your testimony in their own words and then ask you to agree to it. This usually happens when you have given testimony about a very pertinent part of the case and the defense either wants to minimize or magnify what you said. They'll make little subtle changes in what you said, usually in the form of a statement before they ask you a new question. For example "So what you're saying is that you drove around the neighborhood looking for anyone who might fit the description, and you carne upon my client walking down the street. What did you do when you first saw him?" My answer would be: "That's not correct. I said that a witness at the scene told me that the suspect ran east on 11th Avenue from 25th Street North just seconds before I arrived, gave me a description, and I drove east on 11th Avenue looking for the suspect. I wasn't driving around the neighborhood looking for anyone that might fit the description, as you said." (If that had been my earlier testimony.)

The Truth, the Whole Truth and Nothing But . ...

30

The attorney wanted to minimize my earlier testimony. Another example: "In other words, you didn't believe what witness Joe Jones was telling you, but you did take his word that my client was in the car?" My answer: "That's not correct, sir. You're misstating my earlier testimony. I never said that I didn't believe him. I said that I didn't know how truthful Mr. Jones was being with me because he acted very nervous to be talking to the police." The attorney wanted to magnify my earlier testimony. Pay very close attention to his words when an attorney says any of the following: In other words what you're saying is ... Another way to say that would be ... To put it in other words ... Let me paraphrase what you said ... Wouldn't it be fair to say .. . Wouldn't you agree that .. . Isn't it a fact that .. . As you just said .. . Wouldn't you say that ... I'm sure you'd agree that ... These are warning signs that he is about to change the wording of your testimony to better suit his purpose. Don't let him! Stick to your testimony, not his crafty interpretation of it! Another favorite trick of defense attorneys is to use very general terms and get you to agree with them. They'll say things like "When you first got to the scene, you didn't know who had committed this crime, I mean, everyone was a suspect, right?" If you say "yes," you just put your grandmother on the initial suspect list. An answer that usually works well is:

"No sir, everyone wasn't a suspect. In fact, you weren't." My personal favorite question to be asked is: "Isn't it possible that ... ,I mean, anything's possible isn't it?" My answer: "First, it mayor may not have been possible. There could have been a

On Whose Terms A re You Testifying?

31

set of conditions present that would have made it possible, or, on the other hand, impossible. I don't know because I wasn't there when the crime was committed. Second, no sir, anything is not possible." This last part of my answer usually draws an "Oh really? Anything isn't just possible?" To which I respond: "That's correct. As much as I would like to and as hard as I might try, it's not possible for me to flap my arms and fly around this room." If the attorney still wants me to admit that something was "possible," I use one of my favorite answers of all time:

"Well, I'll say this. It is possible that it was possible, but I really don't know what the probability of it being possible would be." The whole point of this chapter is to urge you to listen carefully to every question that you are asked on the witness stand. Each one is asked for a specific purpose. If the question contains terms that you are not comfortable with, you don't have to accept them. TESTIFY ON YOUR OWN TERMS!

Chapter Seven

THE TERROR OF A TRANSCRIPT AND THE TECHNIQUE OF A TAPE RECORDER

O

ur job requires us to become involved in varying degrees with major cases that have a high likelihood of going to trial. Whether it's a murder, rape, robbery, child abuse, or any other serious crime, we usually have a pretty good idea whether or not the case will go all the way through the system, resulting in a jury trial. One good indicator of this probability is whether or not the defense attorney hires a court reporter to record the pretrial hearings. Jurisdictions differ, but, in Jefferson County, Alabama, the District Attorney's Office usually does not record the preliminary hearing, mainly for economic reasons; however, the defense usually does hire their own court reporter, and for a very good reason. It provides them with a transcript of all testimony from the Preliminary Hearing. This practice gives the defense an opportunity to ask questions at this pretrial hearing and have the answers in front of them at trial. If a witness answers differently at trial than he did at the preliminary hearing, then the transcripts can be used to show that a witness changed his story. This is an acceptable tactic because it keeps witnesses honest. The problem comes in when it is used as a trick rather than a tactic. A defense attorney can ask you a question at the preliminary hearing in one context or format, then ask the question differently to elicit a different response at trial. He then waives the transcript from the preliminary hearing in front of your face and has you read the answer out loud to the jury, demonstrating that you are now changing your story. Defense attorneys are so effective at this trick that you are even asking yourself why you changed your testimony! For example, I investigated a murder where the victim was shot and killed in his home. I made an arrest eight months later, and the defendant confessed to shooting the victim as they were arguing over the quantity of cocaine they were "cooking up" in the kitchen of the victim's home. There was no evidence that there had been any drugs or drug 33

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The Truth, the Whole Truth and Nothing But . ...

paraphenalia in the kitchen. At the preliminary hearing, the defense attorney asked me "Sgt. Reynolds, to your knowledge, was there any evidence of drugs or narcotics found in the house?" My answer was no. Then at trial, six months later, which was fourteen months after the murder, he asked me "Do you remember an officer at the scene informing you that marijuana had been found in the house?" I had to think for a minute, then I remembered what I thought he was referring to, and answered "I do remember an officer telling me that he had been snooping around in the rear bedroom of the house and had found two rolled cigarettes in a pouch in a box in a dresser drawer. (This was at the opposite end of the house from the kitchen and was in a room that obviously had nothing to do with the murder and was found by an officer who had no legal right to be looking where he did. And remember, I didn't have his client's statement yet, so we weren't even looking for drugs.) I told the officer to stay out of those people's drawers." Sure enough, the defense attorney pulled out his transcript from the preliminary hearing, and said gleefully, "Why don't you read your answer to the ladies and gentlemen of the jury from the preliminary hearing when you were asked if there were any drugs in the house?" I did, and he threw the transcript back on the defense table as he sarcastically said "We got one answer at the preliminary hearing. We got one answer today. I wonder which one is the truth?" They were both the truth and he knew it! When he asked me about drugs at the preliminary hearing, the question was mixed in with others pertaining to the kitchen. There were no drugs found in the kitchen. When he asked me about drugs at the trial, it was in the context of the snooping officer who said he saw two rolled cigarettes in a place where he had no legal right to be. The attorney knew exactly what he was doing when he asked me the first question at preliminary. He already had the second question planned for trial! (By the way, this attorney did call me

The Terror of a Transcript and the Technique of a Tape Recorder

35

a liar several times in his closing arguments to the jury, then laughed about it in the hallway after the trial and told me that he knew I wasn't a liar and not to take it personally because he was just doing his job.) There is a very effective technique for minimizing this trick. It's the simple use of a tape recorder. I recommend that every time you are called to testify at a pretrial hearing in a case that you think will go to trial, take a small tape recorder with you to the stand, put it right in front of you where the defense attorney can see it and turn it on before you are asked any questions. This will have the immediate effect of telling him that you will have all your testimony, including the context of his questions to review before the trial. I have seen this technique infuriate and enrage a defense attorney because he is so used to having this advantage. You cause him to think very carefully about his strategy, as you have neutralized one of his favorite tricks! Unless your jurisdiction prohibits it, a witness can tape his own testimony (except at a Grand Jury where the proceedings are secret). If some judge doesn't like the idea, give the tape recorder to the prosecutor and have him place it in front of you. The prosecutor certainly has a right to record testimony. Be nice ... loan him your tape recorder. The cost of an inexpensive tape recorder and a few blank tapes is well worth the satisfaction of knowing you'll be prepared at trial. I recommend you listen to the tape several times the night before you are scheduled to testify. You'll find that this technique keeps many of those pigeon-sized butterflies away! While we're on the subject of transcripts, there are a couple more techniques you'll find useful. If an attorney does ask you to read from his transcript in court, always look at what was said just before and after your previous answer. As I said earlier, the context may be completely different. I have even seen some attorneys cover everything except what they want you to read. Don't be afraid to ask him to let you see what was said just before and just after the answer he wants you to read. It just may explain why you answered as you did. If the context is different, point it out to the attorney (and thus, the jury) by saying, "This question was asked in a different context at preliminary," and then explain. The other technique is not to assume that his transcript is completely accurate. If he asks you to read a specific answer that you gave at a pretrial hearing and then says, "Wasn't that your exact answer at preliminary?", don't treat his copy of the transcript as if it were the actual stone tablets that Moses brought down from the mountain. It may not be correct! I have found numerous typographical errors in these transcripts,

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The Truth, the Whole Truth and Nothing But ....

sometimes in conspicuous places. If you have not compared his copy of the tape to his proofread copy of the transcript, then do you trust him enough to say those are your exact words just because he waived a transcript boldly in your face? I DON'T! If you remember saying those exact words, then by all means, say that you do. If I'm not 100 percent sure, I prefer to say "1 can't remember every word 1 said at preliminary. 1 would have to listen to the actual tape of my testimony to see if your transcript is accurate .... As a matter of fact, 1 have my tape of my testimony from the preliminary hearing right here in my pocket. 1 would be glad to play it for you."

Chapter Eight

INDESCRIBABLE DESCRIPTIONS AND UNDEFINABLE DEFINITIONS

D

efense attorneys ask us many different types of questions when we take the stand. One of the rarest types you will encounter is a question asking you to describe or define something. Questions like these are avoided because they allow you to go into detail about things that might be damaging to their client. Could you imagine a defense attorney asking you to describe how his client looked or acted when you arrested him? Or would he ever ask you to define a term like guilt or innocence? In fact, it is so rare for a defense attorney to ask you for a description or definition that whenever he does, little red warning flags should pop up all inside your head. Remember what I said beforeevery question is asked for a purpose. The only time a defense attorney will ask you a description or definition question is (a) when he is pretty darn sure that you can't answer it, making you look incompetent, or (b) when he knows that the only way you can is to give an answer he wants to use against you. Several examples illustrate this point. An officer had lifted some fingerprints at a crime scene that were later matched to the defendant. Before asking the officer his first question, the defense attorney stood up and held a thick technical-looking textbook in front of him as he thumbed through the pages as if he were looking for a particular item. He found what he was looking for and said, "Aha, here it is." He then held the open book in one hand and the 3 x 5 card containing the lifted print from the scene in the other hand. As he peered into the book, he asked, "Officer, would you please tell the court what the technical definition of this item is?" (referring to the card containing the print) The officer was panic-stricken! This attorney had obviously looked up a technical definition in a textbook, a definition that everyone, including the officer himself, felt that he should be able to recite with ease. I mean, 37

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The Truth, the Whole Truth and Nothing But . ...

he had lifted the print, so he certainly should know what to call it, shouldn't he? His mind raced back to rookie school and that other school he went to where he learned about fingerprints, but he couldn't remember what the technical definition of that damn little card was! The attorney said, "Officer, did you hear the question?" The officer looked very uneasy when he answered "Yes sir, I did. I'm trying to remember the technical definition, uh .... I uh .... I know it was covered in the school, but I uh .... I just can't remember the definition at the moment." The attorney grinned and said "So what you're saying is that you did learn what the technical definition of this little item is, but you forgot, is that right, officer?" The officer was really embarrassed now, and said "Yes sir, I uh ... I forgot what that particular specific definition is." The attorney jumped at the chance. "You forgot? YOU FORGOT? I wonder what else you FORGOT about your job! (as he slammed the textbook shut and threw it on the defense table-Attorneys like to slam books and throw them on tables). Never mind, let's move on to something else that maybe you can remember." (The attorney shook his head and looked disgustedAttorneys like to shake their heads and look disgusted.) Everything else the officer testified to was now clouded. The attorney had done an effective job of attacking the officer's confidence in himself and his credibility to the jury. As the officer left the witness stand and walked past the defense table, he glanced over at the technical textbook so he could look up the definition for himself later and never be embarrased like that again. He realized he had been duped when he saw the book title-Cooking Your Way To A Healthy Heart-IOOI Recipes. It was a bluff! He then realized what he had really known all along-there is no technical definition for that damn little card! It's just a damn little card with a lifted latent print on it! How was he trapped so easily? First, he should have been alerted when a defense attorney asked him to define anything. He would have then realized the trick and could have selected from a number of techniques. He could have said "Excuse me, sir (Looking at the book displayed in the defense attorney's hand) Could I ask what textbook you're referring to?

Indescribable Descriptions and Undefinable Definitions

39

Suppose the attorney then says "No, I'm asking you if you know the definition." Or suppose it really is a textbook and he tells you the title but you still don't know what it calls that damn little card. Then you could answer "I'm not familiar with the definition given in that text. I have always referred to it as a fingerprint card." or "There are several terms we use for that item-a fingerprint card, a lifted latent print, a developed print, a print card, but I don't know what that particular book calls it." Don't let an attorney bluff you into giving a definition of something that you are not comfortable with. Use your everyday definitions and the jury will appreciate it. What about those indescribable descriptions? These questions are frequently asked in the areas of alcohol and drugs. In almost every alcohol-related arrest, an officer must articulate his observations about the defendant's demeanor leading to his conclusion that the defendant was intoxicated. We use terms like "staggered as he walked" and "a strong odor of alcoholic beverage on his breath" in our reports to describe the defendant's impairment. If we can't legally justify why we had reason to believe the defendant was intoxicated, then the actual blood-alcohol test that proves he is intoxicated can be excluded as evidence. A defense attorney will ask "Officer, you wrote in the arrest report here that my client "staggered as he walked." Would you describe what you meant by "staggered as he walked?" I mean, had you ever seen my client walk before that night?" "No sir, I hadn't seen him walk before that night." "Then would you please describe what you meant by "staggered as he walked?" Believe me, I have tried to describe how a drunk staggers as he walks, and there is just no way to do it without using the word "stagger." There is no way your verbal description can accurately relate what you visually observed that night. And there, my friend, is your most truthful answer; "Sir, that phrase "staggered as he walked" is a verbal description of something I visually observed your client do that night. I don't know

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of any other accurate way to verbally describe it, but I would be glad to demonstrate for you how he walked" (as you start to get up from the witness stand to demonstrate). I guarantee you, there is not a defense attorney in this country that is going to let you demonstrate to a judge or jury how his client "staggered as he walked." Before you get halfway out of your seat, he will say "No, no, no! That's all right. That won't be necessary. Let's move on to the next question." Also, in alcohol-related arrests, we are asked to describe what a "strong odor of alcoholic beverage" smells like. We all know what it smells like, but have you ever tried to describe it? There's no way without comparing it to some other odor. Defense attorneys know this and will trick you into making a comparison when you shouldn't: "Officer, tell me, just exactly what does a strong odor of alcoholic beverage on someone's breath smell like?" As you're trying to think of how to describe it, he'll say "I mean, is it an unpleasant odor like morning breath, or bad breath, or does it smell like alcohol in a bottle?" If you choose one of his examples, like he wants you to, he's got you! If you say

"Yes sir, it's an unpleasant odor kind of like stale morning breath." His next question will be "Then how did you know my client didn't just wake up shortly before you stopped him? How did you know he hadn't been sleeping for twelve hours after working three straight shifts? Did you ask him if he just woke up? Did you ask him if he had taken time to brush his teeth before you pulled him over while he was on his way to pick up his sick mother?" or "If it smells like alcohol in a bottle, then couldn't my client have just taken a sip from a beer just before you pulled him over?"

Since, in my opinion, the odor of alcoholic beverage on someone's breath cannot be accurately described by using a comparison, my answer is "It's a very distinctive odor, unlike any other smell that I'm familiar with, but one that I have smelled before on the breath of persons who have been consuming alcohol."

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There is one comparison that I would make, and that is, if I recognized that distinctive odor on the breath of the attorney asking the question. My answer would then be "It smells exactly like your breath at the moment."

In the area of drug-related arrests, if an officer smells what he knows from his experience to be that of burning marijuana, then his authority to legally search is expanded. But he can expect questions like "Officer, your report says here that you smelled the odor of marijuana burning and that's what led you to search my client's car where you allegedly found five thousand pounds of marijuana in the trunk. ... Let me ask you, what does burning marijuana smell like?" Many criminal justice textbooks state that marijuana smells like burning rope when it is lit. If you answer with that, you've been had again. The defense attorney is likely to say something like "Then how do you know my client hadn't accidentally set something in the car on fire with a cigarette? Did you see that piece of rope in the back seat with the singed end, or were you too busy looking for dope so that you could arrest him as he was on the way to visit his sick daughter in that borrowed car?" Personally, I've never compared the two to see if they actually do smell similar, but I do know what burning marijuana smells like, and my answer would simply be "Burning marijuana." If the attorney is not satisfied, I'll use the same truthful answer as before

"Marijuana emits a very distinctive odor when burned, that smells like nothing I've ever smelled before, except of course, like burning marijuana." Remember to "go on the alert" when a defense attorney asks you to describe or define. He will only ask you to do so when it serves his purpose. All things are not accurately describable or definable in verbal terms. A friend of mine once said it perfectly as we stood on a downtown street corner. A strange looking character walked by and my friend nudged me and said, "If you've ever seen one, there it goes. If you ain't, that's what one looks like." Don't necessarily agree to the attorney's descriptions or definitions. Use your own experiences to tell nothing but the truth.

Chapter Nine

ASK A STUPID QUESTIONGET A SINCERE ANSWER

A

ll law school students are given a very valuable piece of advice about questioning witnesses on the stand-NEVER ASK A QUESTION THAT YOU DON'T KNOW THE ANSWER TO. This sound principle evidently evolved through history when witnesses would give surprising answers to questions that lawyers wished they hadn't asked. Lawyers don't like surprise answers. This is not a hard piece of advice to remember. It's simple and it makes sense, but attorneys frequently forget, or, more than likely, they get caught up in their own questioning and don't remember that they have forgotten until they hear the surprise answer. This usually happens when the attorney is on a roll with a series of questions about a point that he plans to argue to the jury later. He has the witness right where he wants him and has made his point, but he can't help it-he feels so good about how it's going that he has to ask just one more question to really drive his point home to the jury. And that's when it happens-the stupid question. You know, it's said that the hardest thing for a lawyer to do when he's made his point is to sit down and shut up! Even the good ones make this mistake. And when he does ask the "stupid question," it very often gives you the opportunity to give the most sincere answer of your life. It's like being pushed back into a dark corner, and then, all of a sudden, a huge window appears right in front of you and you see the bright sunlight. By all means, go through that window while it's open! A few examples will illustrate. I was once being questioned by a defense attorney about a confession his client had given me after a four-hour interview (notice I didn't say "interrogation?" -I don't like that word). At the end of the interview, his client finally broke down and cried, admitting to the murder. The attorney was asking me a series of questions designed to make it appear that I had "psychologically coerced" his client into confessing, because of 43

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the stress and duress I had inflicted upon him. The attorney's argument was something like "Of course he said he did it. The officer badgered him for four hours without ceasing and he had to say something to make the officer stop!" But he never got a chance to make that argument. He asked a stupid question - and got a sincere answer. The questioning went like this "Sgt. Reynolds, how long did you question my client?" "We began talking at 4:03 p.m. and the conversation ended at 8: 15 p.m. (notice my terms vs. his terms?-talking vs. question). "So this interrogation lasted four hours. Is that what you're saying?" "Well, we talked for four hours and twelve minutes to be exact." "Isn't four hours a long time to interrogate someone?" "I've talked to people for more than four hours and for less than four hours, so it's not at all unusual, if that's what you're trying to say." (Notice I told the jury what he was trying to imply with that question?) "When you first started 'talking' to my client, did he appear to be an emotionally stable person? (Notice he began to use my term, "talking," instead of his term, "interrogate?" Even though he said it sarcastically, my term still sounded better!) "I didn't notice anything that would have made me think he wasn't." "During those four hours, did you let him go to the bathroom or get up to get a drink of water?" "He didn't ask to go to the bathroom or to get a drink of water." (I wanted to say that he was too busy lying through his teeth to think about the bathroom.) "Would you have let him if he had asked? (Almost a stupid question, but not quite.) "Sure I would have. Come to think of it, I didn't go to the bathroom or get a drink of water, either. The time went pretty fast." "So you 'talked,' as you say (sarcastically again) with him for three hours and thirty minutes before he began this 'alleged' confession. (Attorneys like that word "alleged.") "His statement (I don't like the word "confession") that he did kill her began at approximately 7:33 p.m." "That's exactly right! He maintained his innocence for three hours

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and thirty minutes, then changed his mind and said he did do it. Is that right?" "I don't know what went on in his mind, but he did change his statement at approximately 7:33 p.m." "But he did act emotionally different at this point than he did when he first walked in the room, didn't he?" "Well, he began to cry and lean over in his chair and look at the floor." "Sgt. Reynolds, what was the emotional state of my client at the point where he felt he had to change his story?" "I can't tell you what was going on in his mind or with his emotions because I'm not him. Only he could say. All I can tell you is what I observed." The attorney kept trying to get me to say what emotional state I observed and I kept saying that I wasn't a psychiatrist or psychologist (remember the Unqualified Answer?), therefore I couldn't testify about emotional states of people. The prosecutor even objected to these questions, but the defense attorney argued to the judge that even a "lay person" can give his opinion on such matters. He was so convincing in his argument that the judge directed me to answer the question. I guess the attorney thought my answer would have to be something like "upset," or "stressed," or "tense," or "under a lot of pressure," or any of a number of responses he could use later. I asked him to repeat the question. It was then that I realized what a stupid question it was, and the most sincere answer I have ever given on the witness stand appeared through that open window! "Sgt. Reynolds, what is your opinion of the emotional state you observed my client display when he finally changed his story?" "In my opinion, sir, your client displayed overwhelming guilt!" The attorney immediately jumped up and said, "I object to that answer!" "You can't object. You asked the question," the judge replied. The attorney then turned red, sat down, and shut up. There's another example that deserves mentioning. I heard this story years ago, but I don't know the source, or I would give credit to the teller. There was an elderly gentleman who had witnessed a crime in front of his house late one night as he sat on his porch. The street lighting was dim, yet the old man was able to give details of the act and the assailant. The defense attorney was attacking his ability to see what he said he saw.

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"Mr. Jones, do you wear glasses?" "Nope." "Do you need glasses?" "Don't know. Never been to the eye doctor." "You've never had your eyes examined?" "Nope." "So you don't know if you need glasses or not?" "I see O.K." "But you don't know what your vision is ... I mean you don't know if it's 20-20 or 20-50 ... " "Told you I never been to no eye doctor." "And you don't know if you're near-sighted or far-sighted. Is that right? (Lawyers like to say "Is that right?") "Told you I see O.K." "How far was it from your front porch to what you saw in the street?" "Bout a hundurd foot or so, I'd say." "It was pretty dark that night, wasn't it?" "It was real dark." The lawyer should have shut up and sat down. He had put a little doubt in the jurors' minds about the ability of this old man to see accurately what he said he saw, but he couldn't help it! He was on a roll! He had to ask just one more question-a stupid one. And sure enough, he got a sincere answer from the old man "Well, Mr. Jones, tell me this, do you know how far you can see at night?" The old man rubbed his whiskered chin and thought ... "Hmm ... Well, I can see the moon, how far is that?"

Chapter Ten

QUESTIONS THAT DESERVE QUESTIONS

W

hen you take the witness stand, it is a preestablished fact that you are going to be asked questions and you are going to answer them. This courtroom protocol gives the attorney immediate control of the discourse between you and him. And a good attorney uses this advantage to lead you around on a leash like an obediant animal. After all, he gets to ask the questions and you must answer them, right? Not necessarily. There are many questions that don't deserve an answer; they deserve a question! I've already talked about asking an attorney to define certain terms to you before you agree to answer questions containing them (On Whose Terms Are You Testifying?). But there are other occasions when you should answer a question with a question. The following are a few: When You Don't Understand The Question. Attorneys often ask confusing questions, sometimes intentionally, sometimes not. If you don't understand all, or even a part of the question, by all means, ask the attorney to clarify. When the subject to which you are testifying involves different times or dates, make sure you understand which time or date the attorney is referring to before you answer. Attorneys will purposely jump back and forth in time while questioning you, hoping to trick you into giving conflicting answers. When You Are Asked More Than One Question at a Time. This can either be an intentional trick or simply an attorney thinking with his mouth open. When they want to trick you, they will usually ask several "rapid-fire" questions at once, intending for you to answer only the last one. For example: "When you pulled up in the alley did you actually see my client with a cellophane package in his hand or did you notice if anyone else had anything in their hands? I mean it was dark wasn't it? Did you have your headlights on bright or dim?" 47

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You can use one of two techniques for this type question. If you can remember each question-answer it! It has a way of putting a lawyer in his place when you respond "Yes, I saw your client with a cellophane package in his hand. No, I didn't see anything in the hands of anyone else. Yes, it was dark, and my headlights were on normal beam." The other technique is to ask the attorney which question he wants you to answer. Since I usually can't remember each question, this technique works for me. When I ask him to repeat the questions one at a time, he usually can't remember them either! Attorneys, like the rest of us, sometimes speak before the thought is completely formulated. You'll hear questions like "When did you first ... How did you come to ... What made you think ... Didn't you think my client was a suspect?" An appropriate question for that question would be "I beg your pardon?" When You Need to Buy Time to Formulate Your Answer. There are occasions when you need a little extra time to formulate your response to a question. This often happens when an objection has been made right after a question was asked. While the lawyers are arguing and the judge is ruling, you should be thinking of your answer in case the judge decides you may answer. If you need more time, simply say, "Could you repeat the question, please?" Also, if you think you know how you want to answer a question, but are not sure, ask the attorney, "I'm not sure I understand the question. Would you repeat it please?" I once had a case where the victim of a crime was a politician. When the defense attorney began his cross-examination, he grossly underestimated the politician's ability to handle questions. It was a sight to see! An attorney who was a master at asking questions was trying to trick a politician who was a master at giving answers. They were both accustomed to being in control. The politician ultimately gained control by answering questions with questions. He was so effective that, at one point, he had the attorney seated, looking up at him as he asked, "How would you feel if someone had tried to kill you?" The attorney, who was representing the defendant, sat there and nodded his head, "Yes sir,

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I know, it must have been just terrible." Oh, the power of questions! It was one of the few (very few) times that I actually felt sorry for a defense attorney. Even though courtroom procedure allows the attorney to control the questions, show him that you control the answers by asking an occasional question!

Chapter Eleven

THE IMPROPER INTERRUPTION

I

'm sure you've noticed that some of the techniques I advocate call for more lengthy answers than you may be accustomed to giving. You can bet that the defense attorney will also notice when you give more lengthy answers than he is accustomed to hearing, and when he does, he will try to cut you short with the improper interruption. He uses this trick when you either give him an answer he wasn't looking for or you are saying something he doesn't want the jury to hear. There are techniques you can use to neutralize this trick. When you are asked a question on the stand, you are required to answer it, right? Use this obligation to answer the question, even if the attorney decides he doesn't like your answer. A good attorney always has his next several questions ready, so that he can interrupt you in midsentence, thereby cutting you off. The simplest technique is to just keep talking, ignoring the rude interruption. You have a right to keep answering the question he asked. If he keeps asking his next question as you keep answering his last question, when you finish your answer he will probably ignore your answer and try to get you to address his new question. You may then very politely say, "I'm sorry, I didn't hear that question, I was answering your last question. Would you repeat it please?" Another way to handle the improper interruption is to go ahead and stop answering the question when the defense attorney interrupts with the new question and let him ask it, then respond very politely with, "Do you not want me to finish answering that last question?" By doing this, you have put the attorney on the spot and drawn attention to the fact that he has interrupted your answer. If the answer that he interrupted was something that you really want the jury to hear, then you may say, "Excuse me sir, may I finish my answer to your last question?" At this point the prosecutor will speak up (hopefully) and ask the judge to allow you to answer the question that you were just asked. In most cases, you will be allowed to do so.

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Defense attorneys will rarely ask you to explain anything, because it gives you such an opportunity to talk freely, but, by using the techniques in this book, you force them at times to ask for an explanation before they realize that they have done so. When they do this, THE FLOOR IS YOURS! SEIZE THE OPPORTUNITY! If he doesn't like your explanation, then that's just too bad. He asked you to explain, didn't he? Take your time and give an eloquent explanation. Key phrases that you can interpret as invitations to explain are Explain what you meant by ... Why ... (Oh, I love a "why" question!) How could that have been? What's the difference in ... ? What do you think ... Doesn't your answer mean ... ? Couldn't you have ... ? Shouldn't you have ... ? Aren't you supposed to ... ? Isn't it normal procedure to ... ? Don't you usually ... ? I don't understand ... (An open invitation to explain!) or any other comment that even implies an explanation is in order, like "You didn't even try to find prints? "You handcuffed my client?" "You didn't even look for a weapon?" "You pulled your gun out?" When you are explaining, be on guard for an interruption. If you pause too long between sentences, the attorney is ready to jump in with a question to make you shut up. Try to structure your explanation so that the listener (the jury) will know when you are finished. If the attorney does interrupt you before you are finished, politely say, "I'm sorry, I wasn't through explaining yet." I was once testifying that the defendant began to sob as I was talking to him about the murder. His attorney kept trying, for whatever reason, to get me to say that he was "crying," rather than "sobbing." I guess the attorney was planning a later argument where a "cry" would serve his

The Improper Interruption

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purpose better than a "sob." But the man was sobbing, not crying. The questioning went like this: "He was crying, wasn't he?" "No sir, it was more of a sob." "Did you see tears in his eyes?" "Yes, I did." "He was making sounds, wasn't he?" "Yes .... but from his nose, not his mouth." "Sounds from his nose?" (implying an explanation is in order) "Yes, sniffling sounds as a person makes when he is sobbing." Then, out of aggravation at my answers, the attorney said, "Why don't you just tell me the difference between a "cry" and a "sob" then? That question caught me off guard, and I couldn't think of a way to explain the difference without demonstrating it myself. Since it wouldn't have looked or sounded very professional for me to sob and cry on the witness stand, I just said what I was thinking "I don't know of a way to explain the difference to you, but I have "That's right," he interrupted (improperly), there's not really a difference, is there?" "What I was going to say before you interrupted me was that I have three small children, and let me tell you, there is a big difference when they cry and when they sob. " I noticed half the jury nodding their heads in agreement. They obviously had children, too! I guess the attorney noticed them, too, for he let the matter lay. The techniques described in this chapter serve two purposes. They allow you to get your answers to the ears of the jury, despite rude interruptions by attorneys, and they force the attorney to word his questions more carefully, which throws his rhythm off. By using these techniques you can control your own testimony!

Chapter Twelve

A LITTLE HUMOR IS HEALTHY

J

urors must sit and listen to testimony for hours at a time without a break. Some of the testimony can be less than interesting, and even judges have been known to daydream during the mundane course of a trial. When you take the stand, you don't want to be just another boring state's witness. You want the jury to know that you are a real person with a real job and real feelings. The best way to do this is to reveal a bit of your personality to the jury. We have a bad habit of putting this imaginary armor on before we go into court, and, as a result, we often come across to a jury as cold, hard, humorless, heartless people. You can act like a professional police officer who takes his job very seriously, but you can also let your personality shine through a little bit. An effective way to do this is to show that you have a sense of humor at the appropriate time. When is an appropriate time to add a little humor to the proceedings? Certainly not when you first take the stand, or are giving testimony of a serious nature. The jury would think you were flippant and unprofessional. Let the jury get to know you before you attempt to add humor, so that you don't start off on the wrong foot. There is a very opportune time after the jury has already heard you testify for a bit, and that is when the defense attorney is asking you questions, particularly when he is viciously attacking you or something you did. Just a little bit of strategically placed humor accomplishes several things to your benefit. 1. It lightens the air in the courtroom. 2. It throws the defense attorney out of sync. 3. It neutralizes his attack.

4. It shows the jury that you are not taking his personal attack person all y. Let me $ive you an example to illustrate what I mean. I was being questioned about a case where I had received a telephone call informing me that a very important piece of evidence was in the trunk of a 55

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particular car that the defendant had once owned. The car had been repossessed and was now owned by a used car dealer. The dealer gave his permission to search the trunk, and a crucial piece of incriminating evidence was found. The defense attorney was asking me a series of questions in a very sarcastic tone "So you got this telephone call in your office, huh?" "When are you referring to?" "You know when I'm referring to. When you got this 'hot tip' that there was a 'clue' in the trunk of that car." "Oh, you must be referring to the phone call I received on January the 19th." "Yea, that phone call!" "Yes sir?" "You think of yourself as a pretty good detective, don't you?" "I'm not sure I know what you mean." (very modestly said by me) "Well, you got this 'phone call' and you jumped up and ran right down there and seized this piece of evidence before it could get away, now didn't you?" "No sir." "You didn't?" "No sir, I didn't run. I drove!" N ow I didn't say this in a smart-aleck way or in a sarcastic tone like he was using, but I said it with a slight grin on my face that let him and the jury know that I still had a sense of humor, even when being yelled at by an attorney. Everyone in the courtroom laughed and sighed as the heaviness of his attack melted away, everyone except him, of course. I never knew where he was headed with that series of questions because I disarmed his attack with a little humor! An officer was testifying about a narcotics arrest during an undercover operation where he and several others were posing as big-time dope buyers. The target of the operation never showed up, so they bought from one of his underlings, who was then arrested. On cross-examination by defense counsel, the officer was asked "Sgt. Jordan, this whole little charade that ya'll set up was never intended to bust my client, was it?" "No sir."

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"In fact, ya'll went to all this trouble and spent all this money trying to get Big Fats, didn't you?" "He was the focus of the operation, yes sir." "So ya'll knew he was a big time dope dealer, didn't you? I mean that's why you set up this whole scheme, isn't it?" "We had reliable information that he was dealing in substantial quantities of cocaine." "Yea, I know, so he was who you were after, and not my client, isn't that right?" "As I said, he was the focus of the operation." ''And since you didn't get him, you just decided to arrest my client, huh?" "We decided to arrest your client when your client sold us two kilograms of cocaine." (good answer!) "But he wasn't really who you were after, was he?" "No sir, but it's like they say, if you don't throw a horseshoe you'll never get a ringerl" Again, the officer was not being smart or sassy, but saw an opportunity to reveal his "down-home" personality to the jury. And by doing so, he pulled the rug out from under an attacking attorney! Let me very strongly caution you about the use of this technique. If it's not done in good taste, it will backfire on you. You will appear to be a smart-ass and a jerk. I would advise you to only use it one time, if given the opportunity, while seated on the stand. Using too much humor makes you run the risk of the appearance of trying to be a comedian, which is highly inappropriate in a courtroom setting. But used strategically, a little humor serves the same purpose as a slap in the face to a sarcastic attorney (and we've all wanted to do that at least once!).

Chapter Thirteen

DON'T GET LOST IN THE SMOKESCREEN

H

ave you ever noticed that a defense attorney never asks you about all those great and wonderful things you did correctly at a scene or on a case? But if you made one tiny error, he jumps right on it and pounds and pounds away, making it appear like the most important aspect of the case. This is one of the oldest, easiest, and most effective attorney tricks around-throwing up a smokescreen. The defense attorney will do anything he can to draw the jury's attention away from the evidence against his client. He knows that the jurors can't possibly remember everything that was said in the courtroom, so he creates nonissues and spends considerable time on them in hopes that some jurors will remember the phony issues and forget the pertinent evidence. He may create a fuss about something you did or didn't do at the scene, something you did or didn't put in your report, or something you did or didn't say to his client. The possibilities are endless. An attorney can always find something to use for his smokescreen, and this is where our careless errors come back to haunt us. We often give the attorney just what he needs. We hand him the ammunition and then wonder why he shot us in the foot! Police have to write reports. Reports have words all over them. Some words get misspelled. Attorneys read police reports. Misspelled words are one of the things attorneys look for. When they find them, they use them. You wouldn't think one little misspelled word could cause you much trouble on the stand, would you? What if it's the first word you write on your incident report in that little block labeled "Incident or Offense?" What if you accidentally write "Homocide" instead of "Homicide?" This is a very common mistake. No big deal, right? I listened to an attorney use that misspelled word in his closing arguments to throw up a very effective smokescreen. Like he said 59

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"The state wants you to believe this 'professional' officer did everything she could at the scene. Look at her report. She can't even spell 'Homicide.' But you are supposed to trust her. How much faith would you put in a doctor who couldn't even spell 'aspirin?' " One attorney who told me that the smokescreen was his favorite trick said, "It's so easy. You guys can't do everything. All I do is look for something that cops always do on T.v. but you didn't do. Then I play it up to the jury." Common smokescreen areas are fingerprints ("They didn't even try to get fingerprints!"), searches (If they had just searched my client's house they could have told you none of the missing items were there!"), custody ("He didn't even tell my client what he was being charged with!"), and physical evidence (Out of all that blood at the scene, you would've thought they would take the time to gather one little sample!"). That attorney was right. It is easy for them. And it doesn't seem like there's much we can do when they blow something out of proportion, does ·it? Well, if you have read this far in the book, you surely know by now that there is! In fact, there are several good techniques to neutralize the smokescreen. Steal Their Thunder. If you see a smokescreen going up, diffuse it the first chance you get by stealing their thunder. For instance, use the same techniques as in "The Myth of the Yes or No Answer." Go ahead and give your explanation for doing or not doing something before the attorney has a chance to make a big deal of it. If you see him looking at your report as he asks "Did you search my client's house?" Instead of giving him a flat "No," say "We didn't have a warrant." (if that was the case) He may then sarcastically ask "Oh, I didn't realize you tried to get a search warrant!" Instead of saying "We didn't," you could say "The magistrate's office was closed that night or we would have. We felt that by the next morning any evidence would have been destroyed by his wife" (or whatever the particular reason was). Or, if he asks you "Did you call a technician to process the knife for fingerprints?"

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And if this is the reason you didn't, you could say "The knife had already been handled by a number of people and I didn't think it would be productive to have it printed." Bring Him Back to the Facts. If the attorney is successful in constructing a smokescreen, take every opportunity to bring him back to the pertinent evidence with your answers and demeanor. Let your reactions to his questions tell the jury that this issue is nothing but a lot of hot air. Use responses like "Every case is different." "I have to make judgement calls out there." "I do the best I can under the circumstances." "Let me explain." "It was a decision I made at the time based on the information I had at the time." Don't Hide a Normal Reaction. Attorneys sometimes create a smokescreen by asking you a "question from left field." They'll say absurd things out of the blue like "Why did you pistol whip my client?" "What did you do with the rest of the cocaine you found, sell it or smoke it?" "You told my client you would let her go if she would just have sex with you, didn't you?" This type of question catches many officers completely off guard, and they turn red and become extremely defensive. The jury is looking at how you react. Don't give them a reason to think it even might be true. This is one occasion when you should really say what you think and not worry about its admissibility, especially when a serious accusation is implied in his question! Look him right in the eyes and give an appropriate response. "How dare you say such a thing when you know it's not true!" "Mr. (attorney's name), you know as well as I do that there wasn't any more cocaine there, and I take offense to that remark!" "Sir, you should be ashamed of yourself for making up a lie like that!" At this-point, either the prosecutor or the judge will put a stop to such an outburst, but you have had the last word, and the jury has seen an honest reaction from an honest person.

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Don't Get Hooked Into a Hypothetical Hoax. Isn't it funny how defense attorneys object in a heartbeat when a prosecutor asks you anything that even resembles a hypothetical question, yet defense attorneys are somehow allowed to use them freely? When they do, you're taking a chance no matter how you answer! The hypothetical hoax frequently comes up in custody issues. You'll be asked "If my client had wanted to leave, would you have allowed him to?"

Now obviously, if he was under arrest, your answer would be "No," but, if that were the case, you probably wouldn't be asked that question anyway. If there was any doubt at all about the legal custody status of the defendant, you more than likely don't know whether you would have let him go or not, if the issue never came up at the time. Be careful here. Even if you say you don't know, a good defense attorney can turn that response into a negative answer, thus making his client legally under arrest and triggering several sets of legal constraints on every action after that point in time. If you honestly don't know what you would have done if the defendant had asked to leave at a particular time, use your "range of response." You could answer "That issue never came up." or "He never asked to leave." to which his attorney would say "I know, I know. But what if he had said to you, 'I want to leave now. I need to go check on my sick mother.' (All defendants have sick mothers when they get to court.) Would you have let him go? That's what I want to know!" The best response I've heard is "I guess I would have had to make a decision at that time based on everything I knew at that time. Since that request was not made, I didn't have to make that decision then, and I can't tell you now what I would have done six months ago." Give honest answers without committing yourself to the attorney's trick hypothetical question, and let the judge earn his money by deciding legal issues like custody. Look Out for the Question That Was Never Asked. The last variation of the smokescreen is when an attorney purposely neglects to ask you a

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pertinent question. If a defense attorney notices that a prosecutor didn't ask you a certain question, he may not ask you, either. He has plans for this ommission in his closing arguments. This is perhaps the hardest trick to guard against because there is no question to look for. For instance, if you collect a piece of evidence and you answer all sorts of questions about it, but no one asks you if you had it fingerprinted, what can you do? Tell the prosecutor before you leave! Whisper in his ear as you walk out by the counsel table. Wait for him out in the hall. Slip him a note. Call him when you get home. Whatever it takes, let him know that no one asked you something that may be important. He can always recall you to the stand to cover any potential problem before the defense attorney rams it down your throat in his closing arguments. This is where good preparation pays off. If you have gone over questions you expect to be asked before you get to court, you will notice when they are not asked. You can bet the defense attorney will notice, because he's looking for smokescreen fuel. Don't be his supplier! Keep the air clear so that the jury can hear the truth.

Chapter Fourteen

TEN TIPS ON TESTIFYING 1.

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now the Judge. Just as attorneys know what they can get away with in front of a particular judge, you also should guage your answers accordingly. Some judges are "defense-oriented" while others are "prosecution-oriented." You don't want to make the judge mad at you. Remember, it's his courtroom, and he runs it as he sees fit. Some of these techniques might be frowned upon by some "defense-oriented" judges. Test the water before you dive in!

2. Talk to the Appropriate Listener. When either attorney is asking you a question, always maintain eye contact with him. It shows you are listening carefully to each question, are interested in what he is saying, and are not afraid of him. But when you are asked to explain or tell something to the jury, maintain eye contact with them. It makes them feel more involved in the proceedings and helps you establish a rapport with them. Look for nods and facial expressions telling you they understand. If the attorney tries an "improper interruption," it will be seen as the rude trick that it is.

3. Correct Earlier Testimony and Both Attorneys. There will be times when you are testifying and realize that you have given incorrect information. Don't hesitate to correct it, even if some time has passed. Simply say, "May I correct some earlier testimony? I just realized I was mistaken about something." I have never been refused an opportunity to do so. Both prosecutors and defense attorneys often make mistakes when referring to specific names, dates, times, and addresses. Don't hesitate to

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correct them before you answer the question. It keeps them on their toes and shows the jury that you are on top of your testimony.

4. Know Some Scene Details. Whether you were the first or second officer at the scene, the evidence technician at the scene, or the detective at the scene, you are always going to be asked about specific conditions when you arrived. If you know these questions are coming, make plans for them. When you are at the scene, make detailed notes about lights, doors, windows, weather, TV's, radios, furniture, etc., and review these notes before taking the stand. Think of how it sounds to a jury when you are asked about lighting conditions inside a house when you arrived, and you respond "The front porch light was on, the foyer light was off, the living room was lit with two table lamps only, the kitchen light was off, there was an overhead light on in the hallway, the bathroom light was on, the bedroom light was off, but the TV was on.... Channel Six, I believe.... yes, Channel Six because 'Wheel of Fortune' was playing." Not only is the jury impressed, but the defense attorney now knows that if he asks you a question about scene conditions, he might get another impressive answer. Defense attorneys don't like impressive answers from police officers.

5. Anything You Say Outside of Court Can Be Used Against You. Regardless of the extent of your involvement in a case, you will at some time be contacted by a defense attorney who wishes to talk to you about the case prior to the trial. He'll be very nice to you, wanting you to think he's just a "good ole boy." He'll have "just a couple of questions" about what you did, if you will give him "just a few minutes" of your time. You would be wise to remember the second warning on a standard Miranda card"Anything you say can and will be used against you in a court of law!" Stop and ask yourself why he wants to talk to you. He can discover all the evidence against his client through the district attorney. So what does he want from you? A couple of things. First of all, he wants to size you up, to see how you answer questions, to see how you

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handle yourself, so that he can develop a strategy of tricks designed especially for you! He'll also compare your answers to any written reports you made, looking for smokescreen fuel. He'll usually ask you if you mind if he tapes your conversation. Now why would he want to do that? Is he a stickler for completeness and accuracy? Hell no! He wants to ask you leading questions, then slap you in the face with a transcript at the trial when he tricks you into answering differently! I adamantly refuse to be tape recorded by a defense attorney outside of court. In fact, unless ordered by a judge, prosecutor, or superior officer, I will not discuss a case at all with a defense attorney. There's just not any good at all that can come out of it. When they call and give me the "good ole boy" routine, I tell them "It's not my case anymore. It's under the jurisdiction of the prosecutor's office. I'm a witness in the case, and, as a witness, I have a right either to talk to you or not to. I choose not to. Thank you, good-bye." If a defense attorney wants to ask me questions about a case I was involved in, he can ask me anything he wants-while I'm on the witness stand.

6. Avoid the "I Don't Remember" Answer. Many officers get in the habit of using this answer as a safety net while testifying. As one officer put it, "If it isn't in my report, then 1 don't remember." I understand this logic, but if you say "I don't remember" too many times, you come across as a forgetful person. We, as police officers, are expected to remember more than the average citizen, especially about a case in which we were involved. Show the jury by your words and expressions that you are trying to remember, then tell what you do remember, however limited it is. Use phrases like "Let's see ... " "Let me think ... " "I'll try to remember ... " "Give me a moment ... " "The best I recall ... " "My best recollection is ... " "It was something like ... " "I'm pretty sure ... "

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If you honestly don't remember anything about what you are asked, tell the jury why you don't remember. Expand your range of response to include

"I was busy with something else at the moment, so that I just don't remember which lights were on." "I had a lot to do at the time, and I don't remember exactly how the body was positioned." "I really didn't pay any attention to the weather conditions, because I had other responsibilities." "I can't find that anywhere in my notes, and I don't have an independant recollection of it."

7. Things Not to Say in Court. The defense attorney is listening carefully to every word that comes from your mouth. Key words and phrases will cause him to object immediately. The less he objects, the smoother your testimony is, and the more professional you look. Try not to use the following phrases. "I assume ... " "I presume ... " "He was trying to ... " "I was trying to ... " "He told me ... " "I heard that ... " "I thought that ... " "I was told that ... " "I figured that ... " "He looked like ... " These phrases, and others, will draw objections, but it's challenging to try and think of other ways to say the same thing. For instance, instead of "I was told," say "I learned that." And instead of "I assumed he was going for a gun," say "Based on his actions, I protected myself." Attorneys play word games and so can we!

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8. Tell the Truth About the Legal Lie. The law allows us, under certain circumstances, to bluff a suspect into confessing to a crime. We can tell him that we found his fingerprints when we didn't. We can tell him he was identified by a witness when he wasn't. We can even tell him his buddy snitched him off when he didn't. These and other bluffs have been upheld by the U.S. Supreme Court. Basically, we just can't tell a suspect something that would make an innocent person confess. These investigative tactics have proven effective over the years by netting many legal confessions. But just wait till you get to court. Talk about smokescreen fuel! A good defense attorney will sound better than Daffy Duck when he tells the jury what you did was downright "DESTHTHTHPICABLE!" He'll ask you things like "Don't you think it's wrong to lie?" "You say my client lied to you. WELL DIDN'T YOU TURN AROUND AND LIE TO HIM?" "Who lied first, you or him?" "What other lies did you tell my client?" "Do you lie to people all the time in your job?" He'll tell the jury in his closing arguments "Shouldn't we be able to believe what a police officer tells us?" "Would you want the police to lie to you?" "If he lied then, how do you know he didn't lie to you when he testified?" He'll do everything he can, short of jumping up and down, yelling, "Liar, liar, pants on fire!" How should you react? First, boldly admit that you deceived his client. When the attorney asks you if you lied, say, "I sure did and let me tell you why!" Then use the techniques in this book to tell the jury that it is a "legally acceptable investigative tactic designed to elicit a confession from a guilty person." Tell the jury that you prefer not to lie to people, but that it has been your experience that many people will not admit wrongdoing unless confronted with evidence against them. Tell them that you use this tactic only as a last resort and that if the suspect had been honest with you at the beginning, you would not have been forced to use this tactic. Tell the truth about the legal lie and the jury will appreciate your investigative skills.

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9. Don't Let Your Demeanor Be Distracting. Before jurors go out to deliberate on a verdict, the judge will tell them "You may take into consideration the witness' demeanor and mannerisms, that is, how he or she answers the questions, when deciding whether to believe that witness. If you disbelieve a part of a witness's testimony, then you may disregard that part, or you may disregard the entire testimony of that witness." That adds new meaning to your demeanor, doesn't it? Let's face it, people expect police to act like police. When we show up for court dressed improperly, act unprofessional on the stand, and give inadequate answers, what do we expect? As much as I hate to admit it, a large part of what we do is mere acting. But I guess that's true of a lot of folks. Even a president must know how to act like one! We've got our acting down pretty well on the street, but our courtroom demeanor could use a little help. Remember the importance of first and last impressions. First of all, dress the part. If you're a patrolman, wear your uniform to court. If you're a detective, wear a coat and tie. People expect that. When you show up in jeans and a golf shirt, you've let them down before you even open your mouth. Next, enter the courtroom with obvious control and confidence. Walk deliberately to the witness stand, displaying the attitude that "I'm glad to have the opportunity to come here today and testify," rather than "Let's just get this over with so I can go home." Try to walk directly in front of the jury box and make eye contact with as many jurors as you can. Give them a pleasant "How do you do smile." When you take your seat, lay your reports or case file out in front of you in an orderly manner, showing that you are both able and ready to testify. This action also tells the defense attorney that you are prepared. Sit up straight and lean forward slightly, showing a keen interest in the proceedings. A slightly forward posture sends a nonverbal message to the defense attorney that you are not afraid of him. When you are excused, leave the courtroom with the same control and confidence. Make final eye contact with the jurors, displaying a "thank you for your time" smile. Give the jurors what they expect from you and they will give you what you expect from them, a fair consideration of your testimony.

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10. Treat The Disrespectful With Respect. Even though the defense attorney will often treat you with disrespect, always give him the utmost respect and courtesy. Always act as if it is not your job to determine the guilt of the accused. You are only there to provide facts to the jury. Be careful not to change your tone of answers when the defense begins his cross-examination. This is hard to do because the tone of questioning obviously does change. Even when you recognize a trick, it is very important not to appear combative or argumentative. In other words, never lower yourself to the level of the defense attorney. When you do, he's got you! Let him be the only jerk in the conversation. Always respond professionally, even to a personal attack. If you decide to use one of the answering techniques in this book, make it sound like something you just thought of, rather than a prerehearsed response. Always refer to the defendant as "Mr." or "Mrs." instead of "suspect" or "defendant." This strengthens your neutral position and emphasizes the fact that you have nothing personal against the accused. When you treat the defense attorney and his client with respect, especially when you are being dealt with disrespectfully, you will earn the respect of the jurors.

Chapter Fifteen

THE ART OF INTIMIDATION VS. THE COMFORT OF CONFIDENCE

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hy are defense attorneys so successful in plying the tricks of their trade? For the same reason that you can stop a fight by merely pulling up in your patrol car. People feel intimidated by your presence. We, as police officers, are naturally intimidated by defense attorneys, and they know it! They like it when we get angry at them for what they do, because it works to their advantage. As the old proverb says, "He who the Gods destroyed, they first made angry." Defense attorneys want you to feel like you are stepping into their arena, onto their turf. They especially like rookie cops or officers with little court experience, because they are so vulnerable. A good defense attorney hides behind this imaginary air of intimidation as he draws from his bag of tricks. He raises his voice at us, laughs at some of our answers, gets right up in our face, points his finger at us, rolls his eyes, calls us "Mr." or "Miss," instead of Officer or Sergeant, makes little sarcastic remarks, throws his hands up in the air, makes cute little faces at the jury, and shakes his head in disgust-all designed to intimidate us! All too often, we sit there meekly and mildly, cowering down to these courtroom antics, playing right into their hands. Well, let me tell them how I feel about it. THE COURTROOM IS MY ARENA WHEN I WALK IN, BECAUSE MY TESTIMONY IS MY TURF BECAUSE I CONTROL IT! How can I make such a bold statement? Why am I not intimidated by these tricksters? Because when I enter a courtroom, I enter with the comfort of confidence. I know what they are doing and why they are doing it. I can recognize many of their tricks and I have expanded my range of response to neutralize many of them. I have prepared myself for the particular case at hand and anxiously anticipate my opponent's moves in the adversarial setting of the courtroom. You can gain this confidence, too! When you have the comfort of confidence, you no longer dread going to court.

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Court becomes your arena where you can demonstrate just how professional you are. In any adversarial setting, whether it's sports or courts, you are going to have an offense coming at you (in court, that's the defense attorney). It's to your advantage to understand your opponent's strategies and have a plan ready (techniques outlined in this book.) There's another old saying- "He who has the most contingency plans, wins!" And that's what I've attempted to do with this book, to provide you with contingencies for the tricks you are sure to face in court. I remember when I played shortstop in little league baseball. Before the batter stepped up to the plate, I went over in my mind what I would do if I was hit a grounder or a fly ball, if he bunted, if the runner tried to steal, etc. My actions depended on what the batter did. In court, the defense attorney is the batter. Sometimes he hits a line drive right at me, sometimes he bunts, and sometimes he strikes out. By expanding my range of response with the techniques I've discussed, I am more prepared for whatever he does. Even these techniques are not enough by themselves if you are not prepared for the particular case for which you have been called. Both defense attorneys and prosecutors agree that the average officer comes to court unprepared to testify. We typically work a case, then forget about it until we get the subpoena for court. Then we frantically read over our reports before we take the stand, trying to figure out what kinds of questions we'll be asked. I use a different method of preparation that not only prepares me for court, but saves me from this last minute hassle. I prepare for court as I work the case. I started doing this after finding myself looking back at actions I took six months to a year before the case came to trial, trying to remember why I did or didn't do something. Here's what I do. I always take an imaginary little defense attorney with me on a call. He sits on my shoulder and asks me questions as I go. No, I'm not crazy (Well, maybe I am, but it still works!). I try to see my actions through the eyes of a defense attorney and think of questions he'll ask me down the road. The result is that I am preparing for court as I go, and I have a rationale for everything I did or did not do. When I'm asked later (sometimes much later) about something I did, I not only remember what I did, but why I did it. Many of my answers from the witness stand were formulated that night at the scene. This method works for me. Use whatever method works for you. Just be prepared when you take the witness stand. The

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techniques in this book are worthless, even dangerous, if you are not familiar enough with the pending case to give intelligent answers. Another excellent way to prepare for future testimony in any case is to listen to the closing arguments of the next case you're involved with. If you don't think lawyers distort testimony to confuse and manipulate the jury, just sit and listen. I'm always surprised at how many officers go through their entire careers without doing this. If you want to hear what they do to your testimony, just go to a closing argument. You'll be amazed! They can call you incompetent, sloppy, stupid, inept, deceitful, a liar, a con man, a crook, a homosexual, a pervert, an idiot, and a sucker. You can be accused of hiding evidence, withholding evidence, destroying evidence, beating a prisoner, robbing a prisoner, or having sex with a prisoner. And all you can do is just sit there and try not to look like you did! Where do they get these accusations and what do they base them on? YOUR TESTIMONY! It is rich with little nuggets of opportunity that attorneys recognize when they hear them. They listen for these little nuggets because they have the shrewd talent to turn them into persuasive gold mines! If you've never listened to closing arguments, PLEASE GO! As you become more comfortable testifying, as you feel more confidence building, as you begin to recognize the tricks and use the techniques I've discussed, you'll notice a pleasant phenomenon occurring. Defense attorneys will begin to leave you alone. They will ask you fewer questions. They will use fewer tricks on you. They will realize that you can hurt their case. They will begin to fear your responses. The most flattering words you'll hear a defense attorney say are, "I have no questions of the witness." The highest compliment I have ever been given in my police career came from the most respected and feared defense attorney in town. I had anticipated his cross-examination of me would take an entire day, and I was ready! But when his chance came, he just said, "No questions." I was dumbfounded, as was the judge and prosecutor. I waited out in the hall and asked him why he had let me off the hook. He said, "Because, Reynolds, you do me more harm on the stand than you do off. I never know what you're going to say when I ask you a question, and I'm just not willing to take the chance." He later told me, "If all police officers testified like that, we'd be in deep shit." Use these techniques and make them put on their boots!

Chapter Sixteen

MY CLOSING ARGUMENTS

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ithout a doubt, the most frustrating aspect of my job over the last eleven years has been to do my best to investigate a case, then see what attorneys do to it when it gets to court. The jury never hears the whole story and sometimes what they do hear barely even resembles my case! It's worse than swimming upstream; it's more like climbing a waterfall! I'm not faulting our judicial system or rules of admissibility of evidence. Our criminal courts are a tribute to the ideals that created the most progressive society in the history of mankind, society where freedom is sacred, society where a citizen accused of a crime can confront witnesses against him and present evidence of his innocence and arguments in his defense, society where that citizen can hire an expert to represent his interests, an expert not only on the letter of the law, but in the art of persuasion as well. I will defend that system to its end and sing its praises to the world. I have seen it work firsthand and have been priveleged to participate in its functioning. But, it seems that somehow over the years, those built-in freedoms based on the legal concept of "best possible defense" have in some way clouded the moral concept of "the truth." Truth and the fact-finding function of the court have taken a back seat to winning the case, putting on a good defense, and doing whatever it takes to win. The guilt or innocence of an accused citizen is decided by which attorney can out-argue, out-strategize, out-maneuver, out-think, and out-smart the other! Attorneys appear to be more concerned with who won or lost than whether justice was served. The guilt or innocence of the accused gets lost in such side issues as who put on the best show, who argued the most effectively, or which strategy was best. This attitude serves neither the defendant, the victim, nor society. The whole purpose of court should be to determine the truth about the guilt or innocence of the accused, not a contest to determine the most talented attorney! I truly regret having to write this book. I wish I could go to court and simply tell what I did and why. I wish I could be asked straight-forward 77

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questions and give straight-forward answers. I wish I wasn't subjected to sophisticated methods of manipulation and distortion. I wish I didn't have to develop techniques to get more of the "WHOLE TRUTH" of my case to the jury. I wish everybody told the truth all the time. Does the fact that everybody doesn't, justify the methods used by many attorneys? At first glance, it might appear so, and most attorneys hang their hat on this justification. But stop and think about it for a minute. If you use the fact that some people can and do lie on the witness stand as justification for methods that make even an honest person look like a liar, then you, in fact, force honest people to sometimes lie to make it look like they're telling the truth! The whole process turns into a confusing spectacle of wits, and truth takes a back seat. I wish it were not so, but you know what they say about wishing in one hand and spitting in the other-the spit always wins. So, instead of wishing, I turned to writing. As I stated in the Introduction, my purpose in writing this book was to accomplish the four "E's" -Enlighten, Expose, Educate, and Equip. I hope you have been enlightened to what is going on in a modern day American courtroom. I hope the exposure to these defense attorney tricks has helped educate you in techniques you can use to expand your "range of response." I hope you are now better equipped to tell THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH. In writing this book, it was not my intention to ridicule attorneys or insult those who do their best to practice law in an ethical manner. However, if I have ruffled any attorney feathers or stepped on any attorney toes, I only hope that they can remember their own words"Don't take it personal, guys, I'm just doing my job!"