October 2014
Excited Utterance
In this issue:
Question First
Then Miranda
Miranda
Questions
Winning
Courtroom
Testimony
Legal Eagle
Published by:
Office of the State Attorney
West Palm Beach, FL
33401
B. Krischer, Editor
Gregory Taylor’s ex-girlfriend,
Tambra Bacon, testified that shortly
after their relationship ended, she
was driving her new boyfriend’s car
when she saw Taylor standing in the
middle of the road. After making eye
contact with Bacon, Taylor walked
in front of her vehicle, yelled out
various insults, and threatened to kill
her. As Bacon sped away, she saw a
gun in Taylor’s hand and heard what
sounded like three gunshots. She
then drove to a nearby restaurant,
where she dialed 911. However, upon seeing a police officer nearby,
Officer Carlos Davila, she hung up
and told him what happened.
Officer Davila’s testimony was
generally consistent with Bacon’s.
Additionally, he testified that he observed bullet holes in the door of the
car she was driving. Crime scene
technicians located bullets inside the
vehicle driven by Bacon. However,
law enforcement did not find evidence of spent cartridges at the scene, nor could they locate any witnesses. The trial court allowed Officer Davila to relate to the jury what
Tambra Bacon told him about the
shooting.
The defendant was convicted of a
firearm offense and appealed arguing
that the officer’s testimony was inadmissible hearsay. The 5th D.C.A. did
not agree.
Issue:
Did the victim’s report to the officer
function as an excited utterance, and
thereby constituted an exception to
the hearsay rule? Yes.
Excited Utterance:
At trial the State argued that the
statements were admissible pursuant
to the excited utterance exception to
the hearsay rule. The defense responded that the excited utterance
exception was inapplicable because
Officer Davila testified that Bacon
had calmed down at the time of their
conversation.
An excited utterance is “a statement or excited utterance relating to
a startling event or condition made
while the declarant was under the
stress of excitement caused by the
event or condition.” § 90.803(2), F.S.
For a statement to constitute an
excited utterance, three requirements
must be met: (1) there must have
been an event startling enough to
cause nervous excitement; (2) the
statement must have been made before the declarant had time to contrive or misrepresent; and (3) the
statement must have been made
while the declarant was still under
the stress of excitement caused by the
event. State v. Jano, (Fla.1988).
The excited state can exist for a
substantial amount of time after the
event occurs. When assessing the
1
should consult with their agency advisors to confirm
the interpretation provided in this publication
October
and to2014
LOfficers
egal Eagle
what extent it will affect their actions. Past issues of the Legal Eagle are available at //SA15.org under “Resources.”
duration of the excited state, the
court considers whether the declarant
had time for reflective thought and
the capacity for conscious misrepresentation.
“In determining whether the necessary mental state exits, the length
of time between the statement and
the startling event may be considered. Only in exceptional cases
would a statement made more than
several hours after the event be made
in the stress of excitement caused by
the event. Other factors that the trial
judge can consider in determining
whether the necessary state of stress
or excitement is present are the age
of the declarant, the physical and
mental condition of the declarant, the
characteristics of the event, and the
subject matter of the statement. If the
time between the startling event and
the statement is long enough to permit reflective thought by the declarant, the burden is on the offering
party to demonstrate that the declarant did not engage in reflective
thought.” C. Ehrhardt, Florida Evidence § 803.2 (2008 Edition).
Court’s Ruling:
The 5th D.C.A. found that the facts
presented at trial established the victim’s mental state caused by the
stress of the shooting qualified her
statement to the officer as an excited
utterance. “Here, Bacon testified that
she saw Officer Davila immediately
after the shooting occurred and that
she was ‘emotional, crying, upset,
[and] panicking’ when she told him
what happened. Officer Davila described Bacon’s demeanor consistently: ‘She was shaken up. You
know, talking really fast, stuttering. I
tried to calm her down a little bit so
she could start telling me what’s going on. And once she calmed down
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slightly she was able to tell me [what
happened].’ As Davila spent time
with Bacon, he observed her start to
calm down. Specifically, he testified:
‘She wasn’t shaking as much. She
did keep looking over her shoulder
once in a while but she was able to—
the pitch of her voice lowered so she
was able to talk, you know, she had
self-control.’ Apparently, the trial
court seized upon Officer Davila’s
testimony that Bacon ‘calmed down
slightly,’ and concluded that her
statements were not excited
utterances.
“Examining the evidence as a
whole, however, we find that this
was an abuse of discretion. There
was no evidence that Bacon had sufficient time for reflection, and the
evidence demonstrated that she was
still in a state of panic as she related
the events, which had occurred just
minutes before, to Officer Davila.
Although she may have calmed
down enough to speak to Officer
Davila, she was still shaking and
appeared excited. See, Hudson v.
State, (Fla.2008) (holding that the
fact that declarant’s voice did not
sound excited was not determinative
of whether his statements met the
requirements of section 90.803(2),
F.S., and noting that ‘some people
remain calm of voice when under
stress’). Under these facts, Bacon’s
statements were excited utterances.
Accordingly, we find that the admission of the statements was not error.
AFFIRMED.”
Lessons Learned:
While the facts of this case included
the victim testifying at the trial, the
benefit of the excited utterance exception to the hearsay rule is that it
permits the officer to testify to what
the victim told him that occurred
2
even when she does not appear at
trial. This is called “evidence based
prosecution,” allowing the defendant
to be prosecuted despite the victim’s
absence. Obviously, this is of great
value in a domestic violence case.
As always effective report writing
is critical. As seen above Officer
Davila’s testimony included the victim’s physical condition (shaking,
stuttering, looking over her shoulder)
and state of mind (nervous) at the
time she approached him to report
the shooting.
Thus it is important that the LEO
thoroughly document in the offense
report the demeanor and emotional
condition of the victim (calm, crying,
shaking, hysterical, sweating, angry,
yelling).
If a camera is available photograph the demeanor.
If a digital recorder is available
tape-record the victim’s statement.
However, an excited utterance cannot be in response to investigative
questioning.
Assess verbal and non-verbal
communication of parties involved
and include in the report.
Ask the victim who she called
immediately after the incident. This
witness could have important information, and can testify to the victim’s demeanor. The witness may
also be permitted to testify to the
victim’s excited utterance.
If the victim originally contacted
911, acquire a copy of the taped call.
Photograph the condition of the victim and the scene (clothing and appearance) when relevant to corroborate victim’s statement.
Taylorv.State
5thD.C.A.(August29,2014)
October 2014
Legal Eagle
3
October 2014
Recent Case Law
Talk First Then Miranda ing. She informed Wright that Hoop- interview. By the time Detective
Amber Wright, and five others, was
charged with the murder of Seth
Jackson. Following up on a tip the
police went to the Wright house and
met with Amber and her friends.
Amber and three others went to the
station in a marked Sheriff’s Office
vehicle, while Amber’s Mom followed behind in her own car.
At the sheriff’s office, Wright had
three videotaped interviews with
Detective Rhonda Stroup. The first
interview took place in a “soft
room.” Wright and her mother sat
together on a large couch, while Detective Stroup sat across from them
in a chair. The conversation was
calm and patient. Detective Stroup’s
questions were factual in nature, and
did not accuse or confront either
Wright or her mother. This first interview lasted about twenty minutes,
but the video recording continued for
an additional hour. During that time,
Wright and her mother primarily
stayed in the soft room, which was
unlocked.
While Detective Stroup was out of
the room she interviewed Kyle
Hooper, who confessed to the murder and implicated the others, including Wright. Detective Stroup then
returned to Amber for a second interview. This time, Wright was moved
to a “hard room,” a more traditional
police interrogation room. To this
point, Wright had not been given the
Miranda warnings.
Detective Stroup began the second
interview by accusing Wright of ly-
Legal Eagle
er had told her “everything,” and if
Wright continued to lie, she would
be treated “like a piece of garbage.”
Finally, Wright admitted her involvement in Jackson’s murder, largely as
described by Hooper, prompted by
Detective Stroup’s questions. At the
conclusion of the second interview,
Detective Stroup arrested Wright for
murder and handcuffed her.
Shortly after the second interview
ended, Detective Stroup realized that
no one had Mirandized Wright. As a
result, she escorted Wright, in handcuffs, back to the soft room for a
third interview. At the start of the
third interview, Detective Stroup told
Wright that she was giving her “the
chance to be the honest one.” Detective Stroup informed Wright that she
had not been read her rights, and
then presented a Miranda waiver
form to Wright, noting, “This is
something I have to do, OK?” Detective Stroup read the warnings on the
form to Wright, ultimately asking,
“Do you understand these rights?”
Wright nodded affirmatively. Detective Stroup then asked, “Having
these rights in mind, do you want to
talk about this? And if [so] put your
initials right there.” Wright complied, saying, “Might as well get it
all out.” After Wright signed the
waiver form, Detective Stroup questioned her calmly, frequently referring to inculpatory information
gleaned from their just-completed,
un-Mirandized second interview.
Wright’s answers were consistent
with her statements in the second
4
Stroup read Wright her Miranda
rights, Wright had been at the sheriff’s office for more than six hours.
Wright filed a motion to suppress her
statements, arguing that they were
the product of custodial interrogations, that she had not been Mirandized before the first or second interview, and that the failure to do so
tainted the admissions made in the
third interview. While the State
agreed to the suppression of the second interview, it argued against suppressing the first or third interviews.
The trial court agreed.
The 5th D.C.A. disagreed.
Issue:
Did advising the defendant of her
Miranda rights prior to her third
statement cure the defect arising
from the second interview? No.
Custodial Interrogation
and Miranda:
Both the United States and Florida
Constitutions provide that a person
may not be “compelled” to be a witness against himself or herself in any
criminal matter. To protect the right
against self-incrimination, the Supreme Court requires that any individual held for custodial interrogation must be clearly informed as to
his or her rights, including the “right
to remain silent, that any statement
he does make may be used as evidence against him, and ... [the] right
to the presence of an attorney, either
retained or appointed.” If the rights
specified in Miranda are not respected, then no evidence obtained from
the interrogation of a person in
October 2014
“custody or otherwise deprived of his
freedom by the authorities in any
significant way” may be used against
that person. A defendant may waive
these rights, but the waiver must be
made voluntarily, knowingly, and
intelligently.” Therefore, “unless and
until [the Miranda ] warnings and
waiver are demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be
used against [the defendant].” “A
Miranda violation does not constitute coercion but rather affords a
bright-line, legal presumption of
coercion, requiring suppression of all
unwarned statements.” Oregon v.
Elstad, (S.Ct.1985).
Court’s Ruling:
“The first issue we consider is
whether Wright’s initial interrogation
by Detective Stroup was custodial.
Police are not required to give Miranda warnings to every potential
suspect. The warnings apply only to
custodial interrogations…For Miranda purposes, custodial interrogation
means any ‘questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of
action in any significant way.’”
“The Florida Supreme Court has
adopted the objective, reasonableperson test to determine if a suspect
is in custody and thus entitled to Miranda warnings before questioning.
This test requires the court to determine if, under the totality of the circumstances, a reasonable person in
the suspect’s position would not feel
free to leave or to terminate the encounter with police. To make this
determination, the court considers:
(1) the manner in which police summon the suspect for questioning, (2)
the purpose, place, and manner of the
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interrogation, (3) the extent to which
the suspect is confronted with evidence of his or her guilt, and (4)
whether the suspect is informed that
he or she is free to leave the place of
questioning. The interviewee’s age
and prior contact with law enforcement and the criminal justice system
may also be considered. Ramirez v.
State, (Fla.1999). However, simply
being questioned at a police station
does not necessarily imply that an
individual is in custody.”
“We know that Wright was fifteen
at the time of the interviews. …Only
one detective was present during the
initial interview, which was conducted in the soft room. In that interview,
Detective Stroup’s tone was matterof-fact and she did not accuse Wright
of any crime or confront her with any
evidence of guilt. Wright’s mother
was present for the entire interview.
Their path to the room’s door was
unimpeded and the room was neither
locked nor guarded. Wright was not
informed that she was free to leave,
but neither was she in handcuffs or
otherwise physically restrained. Her
mother still had a cell phone. After
the interview, Wright was left with
her mother for more than an hour,
talked on the phone and tried to
sleep. The officer monitoring the
interviews from another room did not
interrupt Wright when she talked on
the phone, and volunteered to assist
Wright when she left the interview
room on her own. None of these circumstances indicate to us that
Wright’s freedom was impeded on a
level similar to an arrest. A reasonable person, even a minor, would feel
free to leave. Under the totality-ofthe-circumstances test described in
Connor, we conclude that Wright
was not in custody during the first
5
interview and, as a consequence,
Miranda warnings were not required.
“By the start of the third interview,
circumstances had changed substantially. Wright had been arrested for
murder and handcuffed. The State
does not dispute that Wright was in
custody at the start of the third interview. At this point, Wright had been
at the sheriff’s station for roughly six
hours. Just fifteen to forty-five
minutes earlier, she had been subjected to an un-Mirandized, intense
and accusatory interview, during
which she confessed. Though Detective Stroup read Wright the Miranda
warnings before starting the third
interview and Wright agreed to
waive those rights, Wright contends
that her waiver was ineffective and
tainted by her earlier, un-Mirandized
confession.”
“In Ross v. State, (Fla.2010), the
Florida Supreme Court reviewed the
law governing the effectiveness of
‘mid-stream’ Miranda warnings,
meaning those delayed until after the
start of questioning. Ross reiterated
the long-standing rule that places a
‘heavy burden’ on the State to show
that an interviewee who confesses
after Miranda warnings were given
waived his or her rights knowingly
and intelligently. Normally, this happens at the start of an interrogation.
The court observed that Miranda
warnings are not always sufficient
when their administration is delayed
until well into an interrogation.”
“Ross also requires us to examine
the other circumstances around the
warned and unwarned statements.
Specifically, we look at whether the
two statements were made under
circumstances sufficiently similar to
indicate that the interrogation was, in
actuality, one ‘integrated and proxi-
October 2014
mately conducted questioning’ and
not two separate events. Here, much
like the two rounds of questioning in
Ross, all the interviews were conducted in the same building, by the
same officer within a short span of
time, and covered almost exactly the
same information. After receiving
her waiver, Detective Stroup referred
repeatedly to Wright’s earlier statements, and urged her to reiterate her
earlier statements and clarify inconsistencies in the earlier interviews.
The only difference was the manner
of questioning: intense, accusatory
and confrontational in the second
interview, but calm and patient in the
third. The second and third interviews were separated by at most forty-five minutes (and perhaps as little
as fifteen minutes), during which
time Wright was arrested and handcuffed. Thus, we conclude that the
second and third interviews constituted one ‘integrated and proximately conducted questioning,’ and not
separate events as the State asserts.”
“Finally, we consider Wright’s
age, experience with the criminal
justice system, intelligence and, perhaps most significantly, whether the
police did anything to counter
Wright’s probable misimpression
that her earlier, un-Mirandized statements could be used against her. See,
J.D.B. v. North Carolina, (S.Ct.
2011) (noting minors fundamentally
different for certain Miranda purposes). The fifteen-year-old Wright had
only one prior encounter with law
enforcement, though she could not
recall being Mirandized. This weighs
against her understanding the significance of her Miranda rights. …
Finally, law enforcement did nothing
to counter Wright’s probable and
reasonable belief that her prior in-
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criminating statement, made just
minutes before, could be used
against her.”
“In sum, the failure to Mirandize
Wright appears to have been an honest mistake; however, the warnings,
when given, were delivered in the
middle of a single, protracted round
of custodial interrogation of an inexperienced minor. We find that the
State failed to show a knowing, intelligent and voluntary waiver of
Wright’s Miranda rights. As a result,
we conclude that the trial court erred
when it admitted Wright’s third interview into evidence.”
Lessons Learned:
In 2004, in Missouri v. Seibert, the
U.S. Supreme Court addressed the
propriety of a police practice for custodial interrogation that intentionally
gave no Miranda warnings of the
right to remain silent and the right to
counsel until the interrogation had
produced a confession. Thereafter,
when there was no turning back the
suspect was read his Miranda rights.
The Supreme Court affirmed the
suppression of the statements made
after the late Miranda warnings.
Wrightv.State
5thD.C.A.(May30,2014)
MirandaandSuspect’s
Questions
Deputy Buckley made contact with
Michael Parker at his apartment and
read him his Miranda rights. Deputy
Buckley testified that Parker indicated he understood his rights. Parker
voluntarily accompanied the officers
to the police station for an interview.
The transcript of the interview
showed that Parker was informed
that he was not under arrest and he
acknowledged that he had been read
6
his rights. Detective Jones proceeded
to read Parker his Miranda rights
again, and Parker indicated that he
understood them and wished to talk.
Parker described his version of the
events and answered the detective’s
questions by providing a series of
exculpatory statements. The detective’s subsequent insistence on
Parker’s guilt prompted the following conversation:
PARKER: Can you just tell me if I
need to get a lawyer or something?
I’ll tell you but I just don’t—I don’t
want to like—
DETECTIVE JONES: Listen, that’s
your right. But what I’m interested in
is the truth,—
Parker then made numerous incriminating statements. In response
to Parker’s questions about potential
sentences, the detective said that was
“beyond the scope of what [he was]
allowed to give advice about, okay,
so [Parker was] going to end up talking to a lawyer.”
Parker repeatedly expressed a desire to write a letter of apology to the
victims, “I want to say I’m sorry. I
don’t know what to do right now. Is
there—is there a lawyer in the building or am I going to have to f* * * *
sit in there and wait?”
DETECTIVE JONES: No, you
would have to call one. Listen, man,
if you don’t want to do it—
At the end of the interview, Parker
was arrested.
The defendant filed a motion to
suppress his statements alleging that
the detective failed to answer his
questions in good faith as to his need
to get a lawyer. The trial court granted the motion.
The 1st D.C.A. disagreed.
Issue:
What is an officer’s obligation when
October 2014
a suspect asks questions about his
rights under Miranda?
Miranda Rights:
During custodial questioning, a suspect has the right to consult with an
attorney and to have an attorney present. Miranda v. Arizona, (S.Ct.
1966). “If a suspect clearly and unequivocally requests counsel at any
time during a custodial interview, the
interrogation must immediately stop
until a lawyer is present or the suspect reinitiates conversation.” If, on
the other hand, a suspect who has
knowingly and voluntarily waived
his rights makes an equivocal or ambiguous request for counsel, police
officers are not required to stop the
interrogation or ask clarifying questions. See Walker v. State, (Fla.2007)
(finding that the defendant did not
make an unequivocal request for
counsel when he said, “I think I
might want to talk to an attorney”
and later asked the agent if he needed
an attorney). Again, these are instances after a suspect has acknowledged his rights and has begun making statements.
In Almeida v. State, (Fla.1999) the
Florida Supreme Court pointed out
that a suspect who asks questions
while being advised of his rights
must be responded to in a fair and
direct fashion. “If, at any point during custodial interrogation, a suspect
asks a clear question concerning his
or her rights, the officer must stop the
interview and make a good-faith
effort to give a simple and straightforward answer. To do otherwise—
i.e., to give an evasive answer, or to
skip over the question, or to override
or ‘steamroll’ the suspect—is to actively promote the very coercion that
Traylor v. State, (Fla.1992) was intended to dispel.
Legal Eagle
“A suspect who has been ignored
or overridden concerning a right will
be reluctant to exercise that right
freely. Once the officer properly answers the question, the officer may
then resume the interview (provided
of course that the defendant in the
meantime has not invoked his or her
rights). . . . A prefatory utterance
must be subject to the following
three-step analysis: (1) whether the
defendant was in fact referring to his
right to counsel; (2) whether the utterance was a clear, bona fide question calling for an answer, not a rumination or a rhetorical question; and
(3) whether the officer made a goodfaith effort to give a simple and
straightforward answer.”
In State v. Glatzmayer, (Fla.2001),
the Florida Supreme Court held that
where the defendant asked the officers if “they thought he should get a
lawyer?,” the officers’ response that
it was the defendant’s decision was a
good-faith effort to give a simple and
straightforward answer because
“their response was simple, reasonable, and true.” “Unlike the situation
in Almeida, the officers did not engage in ‘gamesmanship’; they did
not try ‘to give an evasive answer, or
to skip over the question, or to override or steamroll’ the suspect.”
Court’s Ruling:
The D.C.A. noted here that the detective did not ignore the defendant’s
questions and gave straight, fair, and
meaningful responses. “In the present case, the issue turns on the third
step of the Almeida analysis: whether
Detective Jones gave a good-faith
answer to Parker’s prefatory question
of ‘can you just tell me if I need to
get a lawyer or something?,’ or tried
to override or steamroll him. We
conclude that Detective Jones’s re-
7
sponse of ‘listen, that’s your right.
But what I’m interested in is the
truth,’ complied with Almeida because the response was simple,
straightforward, and true and in effect communicated to Parker that he
had the right to counsel and whether
to ask for one was his choice. We
further find with regard to Parker’s
prefatory question of ‘is there—is
there a lawyer in the building,’ that
Detective Jones’s response of ‘no,
you would have to call one’ satisfied
Almeida because it, too, was simple,
straightforward, and honest. . . .We
agree that Parker was in fact referring to his right to counsel when he
posed that prefatory question, [‘is
there a lawyer in the building’] and
that his utterance called for an answer. However, we conclude that the
detective made a good-faith effort to
give a simple and honest answer. For
these reasons, the trial court erred by
granting Parker’s motion to suppress
his statements. Accordingly, we REVERSE the trial court’s order.”
Lessons Learned:
As a general rule nothing in Almeida
requires a law enforcement officer to
act as legal advisor or personal counselor for a suspect. “Such a task is
properly left to defense counsel. To
require officers to advise and counsel
suspects would impinge on the officers’ sworn duty to prevent and detect
crime and enforce the laws of the
state.”
What is required is that any unambiguous, unequivocal, direct question be
responded to by the officer. Where the
defendant asked the question, “Do you
think I need a lawyer?” To which the
detective responded, “That’s not our
decision to make, that yours, it’s up to
you.”
Statev.Parker
1stD.C.A.(August22,2014)
October 2014
HowtoBestPrepareforaCourtAppearance
A calm, sincere, respectful, open, forthright attitude — no matter who’s asking the questions — will have you
credibly winning despite confrontational questions
Law enforcement understands how a winning atude is crical to a winning performance in
street confrontaons. Unfortunately, aorneys overlook this when it comes to preparing officers
to “win” in court.
I’ve seen way too many books and training by aorneys tled “courtroom survival” or
“how to survive cross examinaon.” That’s wrong-headed thinking. That’s already giving power
over to the opposing counsel. The goal in court — just like in the street – is to win, not merely to
survive.
Win What?
While a winning atude is key to a winning performance, it’s also important to ask, “Win what?”
When I ask this queson in my courtroom tesmony training, the most common answer is, “Get
the convicon!” In the nearly 30 years I’ve spent working with law enforcement that’s what I’ve
seen them do in court — try to help the prosecutor get the convicon. If you’re trying to help the
prosecutor get the convicon, and you’re trying not to “hurt” the case — do you think that might
affect how you tesfy? Absolutely. You appear biased to the jury (or judge). If a police officer appears biased, do you think that helps or hurts the prosecuon’s case and likelihood of geng a
convicon? When tesfying officers appear biased they’re scoring goals for the other team.
Winning, Defined:
The win for an officer in court — whether in a criminal prosecuon or civil ligaon — is that at
the end of tesmony, the jury or judge must believe you. That’s it. But winning the credibility confrontaon can be difficult when an experienced defense aorney’s white-hot, focused purpose is
to discredit you. That’s because they know if they can raise a doubt about your credibility — because of who you are and what you represent — it may raise a doubt about the enre case.
How Jurors Determine Credibility:
Most experts agree that communicaon is made up of what we say, how we say it, and our body
language. O9-cited research breaks down how important most people find those three means of
communicaon:
• What we say — the actual content of our speech — 7 percent
• How we say it — tone, inflecon, modulaon, pitch, amplificaon — 38 percent
• Non-verbal body language — what we do as we’re speaking — 55 percent
One reason witnesses tesfy in person — rather than just have the jury read a transcript— is so
the jury can see the last two components of communicaon, especially when you’re confronted
by the defense. Most paern jury instrucons tell the jurors they should consider the witness’
manner, behavior, and atude on the stand in deciding the witness’ credibility. Reasonable minds
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8
October 2014
can argue about the exact percentages above but officers understand the concept. They o9en rely
more on how people respond to their quesons and their nonverbal behavior. For discussion purposes, I’ll use the percentages above.
Most Witness Preparation Misses the Boat:
This breakdown of communicaon has amazing implicaons for whether jurors or judges believe
you and whether you’re prepared to win the credibility confrontaon. If you get a pretrial
meeng with the prosecutor, you’re probably going to spend your me on what you’re going to
say. Get it perfect and you’re seven percent on your way to being believed. But this explains how
an officer can tesfy to the objecve truth on the stand and sll get discredited by an experienced
defense aorney. There’s also good news in this breakdown. It explains why an officer can make
honest mistakes on the seven percent and sll be found credible by the jury. You don’t have to
get the ‘what’ perfect for the jury to believe and trust you. So, how do you make the last two
components of your communicaon credible?
All About Attitude:
Your atude determines how you tesfy and your body language. If you’re defensive, that’s how
you’ll come across — regardless of what you say. What kinds of people are defensive? Guilty people. And that’s what the jury will see. The same will happen if you come across hosle, indignant,
or angry. Check any losing atude at the courtroom door.
What Makes a Witness Credible?
Consistency. Jurors look to see if what you say matches how you say it and how you behave when
you say nothing at all.
Respeculness. The witness shows respect to the process and others – the judge, both aorneys,
the jurors. She doesn’t make sarcasc comments or expressions. If in the audience, she listens
respecJully to other witnesses.
Not Arrogant. Arrogance suggests you don’t listen to or value others’ ideas and opinions and you
put yourself above them. Jurors find credible witnesses who treat them as equal, intelligent
adults.
Before You Go to Court:
Ask and answer the most important queson every me. It will help you get the winning atude
in place. Then think about how to be credible. A calm, sincere, respecJul, open, forthright atude — no maer who’s asking the quesons — will have you winning confrontaons quesons
credibility.
Editor’s Note:
This article was authored by Val Van Brocklin. She has been a regular contributor to a number of law
enforcement publications and has been featured in the Calibre Press Online Street Survival Newsletter, Police
Chief magazine, The Law Enforcement Trainer magazine, and The Royal Canadian Mounted Police Gazette.
This article first appeared in PoliceOne.com September 17, 2014.
Legal Eagle
9
October 2014