Cross-Examination Strategies for Law Enforcement

By Stutler, Thomas R. | The FBI Law Enforcement Bulletin, September 1997 | Go to article overview
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Cross-Examination Strategies for Law Enforcement


Stutler, Thomas R., The FBI Law Enforcement Bulletin


Cross-Examination Strategies for Law Enforcement

Courtroom dramas portrayed in the movies or on television often pit crafty defense attorneys against law enforcement officers who seem to have spent their entire careers on the witness stand. Their unimpeachable testimony stands up to grueling cross-examination, and the suspect goes to prison for life.

In reality, over the course of their careers, most law enforcement officers rarely testify during actual trials. Still, when they do, they are considered expert witnesses whose credibility can make, or break, a case. Knowing this, defense attorneys attempt to undermine their credibility by challenging everything from their investigative techniques to their personal belief systems.

These cross-examination strategies are not new. Yet, law enforcement officers routinely stumble on the witness stand because they do not anticipate the defense's questions. Law enforcement officers should consider five general areas before, during, and after investigations to limit the defense attorney's ability to question their findings during cross-examination.

KNOWING AND APPLYING THE LAW

Simply put, in order to enforce the law, officers need to know the law. While they will develop a better understanding of a particular law as a case progresses, officers need a solid foundation from the start. They must know the elements that constitute the law in order to obtain the evidence required to convict the suspect. This may mean, for example, proving that a person accused of driving under the influence was impaired while operating the motor vehicle.

In addition, officers should note the definition and understand the effect of key words found in the text of the law. Some words change the interpretation of a statute. For instance, the law says that officers can use deadly force when faced with an imminent threat. How the courts define "imminent" can mean the difference between justified and unjustified force.

Officers can make a big mistake by confusing two little words: "and" and "or." If, for example, a law contains several elements separated by the word "and," all of the elements must be proven to obtain a conviction. Conversely, the word "or" requires that only one of the elements be proven.

Sometimes, the legal definition of a word differs from its meaning in everyday context. To the average person, the word "shall" is a fancy way of saying "will." In the law, however, it creates a duty for a law enforcement officer to act.

Knowing the law goes hand in hand with understanding its application. Some important constitutional guidelines that dictate how the police gather evidence include search and seizure laws and the Miranda ruling. Officers unfamiliar with the full scope of these restrictions risk seizing evidence or obtaining confessions that will be suppressed later. When in doubt, officers should consult their legal advisors or local prosecutors.

In addition to following the law, officers should adhere to departmental policy. First, department regulations usually reflect the law. Second, failure to follow proper procedures may be grounds to suppress evidence. Finally, defense attorneys try to discredit law enforcement witnesses by emphasizing that they failed to follow their departments' rules.

Every day in the field, law enforcement officers conducting criminal investigations are called upon to make quick legal decisions. These decisions are later scrutinized in the sterile environment of the courtroom. Law enforcement witnesses who display a thorough understanding and well-founded application of the law garner favor with the judge, the jury, and the defense attorney.

Judges give much more latitude and credence to the answers of these officers. Jurors generally find their evidence reliable and credible. And, defense attorneys second-guess their own cross-examination strategies instead of the officers' investigative techniques.

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