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Source file: 1.11 Testifying.pdf. Policy dates appear on the original cover. Page links use the PDF's page order.

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Policy & Procedures                 No. 1.11
                                    Subject:
                    Testifying in Court
                                   Issuing Authority:                                      Effective Date:  Review Date:
                          Chief of Police                      10-23-2009    1/1/2024
                                                                                      References:

 Revision
 &
 Reissued
 Dates:

                GENERAL CONSIDERATIONS AND GUIDELINES

The presentation of evidence in court is the final step taken by the police in a criminal case. The
effectiveness of this presentation is, to a large degree, dependent upon the competence of the
officer on the witness stand. All of the police efforts that precede the court appearance can be
nullified by an inadequate, incomplete or unsatisfactory presentation of the facts by the testifying
officer.

The court will consider not only the quality and quantity of the evidence itself, but also the
manner in which it is presented. The officer's personal appearance, demeanor, attitude and
ability to express him/herself in a convincing manner can greatly affect the weight given to
his/her testimony and have a significant influence on the outcome of the trial.

It is only human for officers to take a personal interest in a criminal case in which they have been
involved and to firmly believe that the offender is guilty and should be convicted. In their
testimony, however, the officers must make every effort to present the facts fairly and impartially
without understating or exaggerating any of the circumstances.

The legal technicalities involved in bringing a criminal investigation and subsequent prosecution
to a successful conclusion requires a team approach. By working together, the prosecutor relies
on the investigative skills of the police and the police rely on the skills of the prosecutor in
handling the legal aspects.

Every court appearance should be a learning experience for a police officer. After every trial,
                    CANTON POLICE DEPARTMENT POLICY AND PROCEDURES                                   1
                                   TESTIFYING IN COURT

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especially if the case is lost, the officer(s) should go over their testimony and the evidence with
the prosecutor and any other officers that were involved to learn further about the strengths and
weaknesses in the case so as to improve the prosecution of the next case. Any objections or
points of law that were raised during the trial that the officer does not understand should be
clarified.

I.    PRIOR TO TRIAL

      A.   When required, the primary officer in a criminal case should have all necessary
              witnesses present and prepared to testify, unless this was taken care of by the
                District Attorney's Office. The task of preparing the witnesses for testimony is
               generally performed by the Victim Witness Unit of the District Attorney’s Office,
             however, if they fail to do so, the officer should inform all witnesses in advance of
             what they can expect when they take the witness stand. The officer should advise
               the witnesses not to offer personal opinions, conjecture or suppositions. The
                officer should advise the witnesses that they will be asked if they have discussed
               the case with the police. They should be advised to respond truthfully and to tell
               exactly what happened, to the best of their ability. The officer should show the
              witness a copy of their written statement, if one was prepared, so as to refresh
                 their memory, because the defense attorney, who also has a copy of the statement,
                will probably question them about it. Where appropriate, the officer should
              advise the witness to discuss certain issues with the prosecutor, particularly if they
              involve legal questions or procedures. Lastly, the officer should be certain that
              he/she and the prosecutor know what the testimony of the witness is going to be.
               "Surprise testimony" can be detrimental to the case and professionally
              embarrassing.

       B.      If there is a sequestration order applicable to the police and other witnesses,
                officers shall remain outside the courtroom until called to testify. Sometimes, the
              judge allows the primary officer to remain in the courtroom during the trial to
                 assist the prosecutor. Once a sequestration is ordered, the officer(s) shall not
               discuss his/her testimony or the testimony of any other witness until the
              completion of the trial. A sequestration order generally requires that each witness
                 testify separately and without discussing their testimony with other witnesses
               (including police officers), and without having overheard the testimony of any
               other witnesses in the courtroom. Violation of a sequestration order could result
                in the judge declaring a mistrial or even dismissing the case entirely. Any
               discussion with and amongst witnesses about the case prior to issuance of a
               sequestration order is not a violation of the order.

      C.    The officer(s) should not discuss the case with the defendant or his/her attorney,
               or make any agreement with the defendant's attorney for recommendations as to
               the disposition of the case without the District Attorney's prosecutor being
                present.

                    CANTON POLICE DEPARTMENT POLICY AND PROCEDURES                                  2
                                   TESTIFYING IN COURT

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D.     In pretrial conferences with the prosecutor, it is the responsibility of the police
                officer to provide all available information even though it may be beneficial to the
              defendant. No detail concerning the particular case should be considered too
                  trivial to discuss. This will decrease the likelihood of any surprise developments
              during the trial.

       E.       It is understandable that occasionally mistakes in testimony may be made,
               especially in lengthy cases. The officer should voluntarily correct any error as
             soon as possible. In addition, an officer may realize after he/she has left the
              witness stand, he/she or the prosecutor may have overlooked some particular
                point. If this happens, the officer should inform the prosecutor as soon as possible
               in a manner that is not distracting to the court, such as with a written note.

II.   CONDUCT AS A WITNESS

      A.    Every police officer testifying in any court proceeding should:

                1.    Be punctual in reporting at the required time and place. Physical
                     appearance, personal conduct, and professional manner should be aimed at
                  making the best possible impression.

                2.     Review in advance all aspects of the case and have all necessary witnesses
                   and evidence present.

                3.      Testify as to what he/she knows or believes to be the truth.

                4.     Speak naturally and calmly in a clear and audible tone of voice, avoiding
                      slang and overly-technical terms.

                5.     Maintain self-control and personal composure even if the defense counsel
                     attempts to berate, belittle or embarrass the officer or his/her efforts.

                6.      Carefully listen to each question and respond accordingly. If asked to state
                      the facts, state the facts known or believed to be true;  if asked to state an
                     opinion or conclusion, do so if the officer has formed an opinion or
                     conclusion which he/she can articulate and support; and if an answer is
                   unknown, state that it is unknown.

                7.    Answer only the questions which are asked.

                8.    Make every effort to avoid errors in his/her testimony or inconsistent
                      statements which could undermine his/her credibility before the Judge and
                         jury.

                9.     Confine testimony to the particular case and do not volunteer information
                    CANTON POLICE DEPARTMENT POLICY AND PROCEDURES                                  3
                                  TESTIFYING IN COURT

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or go beyond the scope of the question that was asked.

B.      First impressions can be important to the Judge and jury. When an officer is
        called to the witness stand, he/she should be aware of this. The officer should be
         alert, confident, and professional. He/she should speak clearly and loudly in order
        that all jurors are able to hear.

C.    When a question is asked, the testifying officer should look directly at the person
       asking the question and then provide a deliberate, courteous and well-considered
       answer. If the officer does not hear or clearly understand the question, he/she
       should request that the question be clarified or repeated.

D.   A brief pause prior to answering questions is recommended, as it allows time for
        the prosecutor to analyze the question, and make an objection to it if appropriate.
     When an objection is made, the officer should immediately stop his/her testimony,
       and await the judge's decision or instruction.

E.     In responding to questions, an officer should be as specific as possible, but in
        testifying as to times or distances he/she should provide approximations unless
        exact information is readily available.

F.    An officer should not volunteer information or answer any questions that have not
       been asked.

G.    At the request of the prosecutor or defense attorney, and with the permission of
        the Judge, an officer may refer to his/her notes or police report for the purpose of
        refreshing his/her memory on a given point. However, material taken to the
       witness stand for this purpose can be examined by the defense attorney. An
         officer's continual reliance on notes or a report may indicate to the jurors a lack of
      knowledge regarding the facts of the case. However, if the defense attorney has
        the officer's report and is asking questions directly from it, it is best that the
        officer review what is being referred to in order to insure that the question is not
       taken out of context or given a meaning other than what the officer had intended.

H.    Advance preparation will avoid dependence on notes and reports in most
        instances.

I.      In responding to questions, an officer should not guess or give an ambiguous
       answer. If he/she does not know or is uncertain of the answer, he/she should
       admit it, which is less damaging to the case than an inaccurate answer. Generally,
       personal opinions are not allowed into testimony by the Judge and should not be
       given unless asked.

J.       Pre-trial conferences with the prosecutor regarding an officer's proposed
       testimony are proper and legitimate, and the officer should answer truthfully if
              CANTON POLICE DEPARTMENT POLICY AND PROCEDURES                                  4
                            TESTIFYING IN COURT

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asked by the defense counsel whether there was such a conference.

      K.      If during or at the conclusion of the officer's direct testimony, and prior to cross-
              examination, the officer realizes that an important point has not been brought out
               or fully developed, he/she should bring it to the prosecutor's attention discreetly
             and as soon as possible. The prosecutor may not be able to recall the officer once
              he/she has been dismissed from the witness stand.

III.   DEFENSE ATTORNEY TACTICS

      A.   A defense attorney may resort to a variety of tactics in an effort to confuse or
               upset the testifying police officer or to discredit his/her testimony. This must be
              expected and it is permissible within ethical limits. An officer's ability to cope
              with these tactics improves with experience. As the Judge and jury will be closely
              observing the officer, he/she should never become argumentative or openly
               display anger or animosity towards the defense counsel. The officer should
             remain calm at all times despite any badgering tactics by the defense, and allow
                 sufficient time to permit the prosecutor to make appropriate objections.

       B.     Following are some common tactics used by a defense counsel in cross-
               examination:

                1.     Asking questions in a rapid fire manner to confuse the witness.

                 2.      Intentionally mispronouncing the officer's name or calling him/her by the
                        incorrect rank or title in order to affect his concentration.

                 3.     Being overly friendly, thus providing a false sense of security prior to
                     attempting to lead the officer into inconsistent or conflicting answers.

                 4.     Being condescending to the point of ridicule to give the impression that
                       the officer lacks experience or expertise.

                 5.     Asking repetitious questions or rephrasing questions in order to obtain
                        inconsistent answers or answers which conflict with previous testimony by
                       the witness.

                 6.     Asking questions which suggest a particular answer in order to lead the
                      witness into responding.

                 7.     Continuing to stare directly at the witness after he/she has responded in
                      order to provoke the witness into elaborating on his/her answer, thus
                      providing more information than the question required.

                 8.    Demanding a "yes" or "no" answer to questions that obviously require
                    CANTON POLICE DEPARTMENT POLICY AND PROCEDURES                                  5
                                   TESTIFYING IN COURT

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more explanation.

                9.     Suggesting or indicating that conflicting answers were given in earlier
                      testimony.

               10.    Asking belligerent questions intended to anger and disconcert the witness.

     An officer should remember that his/her testimony is usually heavily weighed by the
       Judge and jury in light of all evidence, and, therefore, it is the defense counsel's job to
       attempt to diminish or discredit the officer's testimony and the impact it has on their
         client's case.

IV. TESTIFYING IN CIVIL SUITS OR AS A DEFENSE WITNESS

      A.   A police officer should not testify in any civil case which relates to his/her police
               duties unless he/she is a party to the law suit or is legally summoned to appear or
               unless permission has been obtained from the Chief of Police.

       B.   A police officer should not testify for the defendant in any criminal case without
              being legally summoned to appear. As soon as the officer learns that he/she will
             be asked to testify, he/she WILL inform the Chief and the prosecutor of the
               nature of his/her testimony.

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                    CANTON POLICE DEPARTMENT POLICY AND PROCEDURES                                  6
                                   TESTIFYING IN COURT