Taking a Stand, on the Stand
Each month, I try to develop topics that will help you succeed as a law enforcement trainer. This past month, I covered the beginnings of a class: the introduction. This month, I’m heading to the opposite end of the spectrum. Long after the training is over, the possibility exists that you’ll be involved in defending your officers, your agency and the training you helped provide.
Often, it’s a civil lawsuit lodged against the department that focuses on some form of police action. Someone—or, more likely, their attorney—files the action after they claim that they’ve suffered a wrong at the hands of the police. If you’re involved in training related to the incident, this can mean that you may become involved in the litigation. Most likely you’ll learn of the lawsuit through the normal filing process naming your department—and perhaps even you individually—as a defendant.
So, What’s Your Opinion?
When this happens, terms such as “subject matter expert” or “person most knowledgeable” may be in your future. So what do these terms mean? Subject matter expert refers to someone who is experienced and savvy about a particular area or topic. A person most knowledgeable is a similar designation, except that your agency has singled you out as the expert. This has happened to me, and it often takes place in preparation for a forthcoming trial or deposition.
“Court-qualified expert” is another designation that a department’s instructors may be asked to shoulder. A qualified expert “is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness’s specialized opinion about an evidence or fact issue within the scope of his expertise.” This title is normally bestowed after the specialist (meaning you) on the stand has gone through a Q&A process before the judge. Typically, the process includes questions from the department’s legal representative, as well as a phase that consists of you versus the other side’s attorney.
In my experience, most of these folks are good, ethical people who are truly doing their job right. It’s just that we are on opposite sides of the issue. While on the stand, they may spar with you and even try to hammer home certain points. But these attorneys are typically legal adversaries who are fair, professional and worthy of respect.
Sue, Swindle & Slime
But there’s another type of counselor you may face. Possibly you already have. Generically, let’s call him Mr. Slime from the law firm of Sue, Swindle & Slime.
Lines of questioning might seem like personal attacks on your character, honesty and professionalism. Mr. Slime will question your resume, and your knowledge of the involved topic—use of force, less lethal, firearms, decision making, whatever—will be attacked. Your expert opinion will be closely examined to try to find the tiniest of flaws. This may even be based on the input of Mr. Slime’s own expert witness. (Sadly, the latter person is sometimes a former cop who now makes a living testifying against others in law enforcement.)
Sometimes, the attorney’s overall objective is to come at you using an aggressive and degrading approach that is calculated to humiliate or rattle you or get you mad in front of the judge and/or jury. Do not let them do this to you. Let’s repeat this point: Do not let them do this to you. Instead, beat Mr. Slime at his own game by maintaining your composure despite his best attempts to shake you up.
It’s All in the Delivery
Like some of you, I’ve had my share of such challenging moments on the stand. What’s helped me is to know the material in question very well, keep my emotions in check and recognize what this attorney is trying to do to me.
You’re at your very best as an expert when you deflect such attacks with a calm demeanor that’s backed by a confident delivery of facts and opinions. Cops call it “command presence.” If you handle yourself in such a manner in court or during a deposition, then your expert testimony will likely be well received.
A few times, I’ve received juror feedback after the trial was over. I’m proud that they viewed my testimony as one of the deciding factors in the verdict going in our favor. That told me that I did a good job for my fellow officers and my department. You can do the same.
There She Goes
I’ve gone through the above process a number of times, including grueling, hours-long testimony on crowd control, less lethal munitions, street gangs and white supremacists. However, my most memorable experience came after I’d been duly recognized as a court-qualified expert on another topic.
As part of my department’s narcotics influence street team, I was testifying before a jury during a heroin influence trial. The prosecution had turned me loose to describe in detail a heroin user’s “slamming,” also known as injecting illegal narcotics. I was getting pretty detailed as I related how “hypes” sometimes insert needles into the vein and then watch for a small amount of blood to flow into the syringe. This way they know they have a good injection site. By then, I was really into describing this act. Based on what happened next, I guess I was pretty effective and very graphic in my description—perhaps too graphic.
The judge tried to interrupt me. But, at first, this didn’t register as I plowed forward with my testimony. It finally dawned on me that I should shut up. I turned to look at the man with the gavel, but he was focused on what was happening in the jury box. I looked over just in time to see something quite unusual—at least for a courtroom—take place: I had noted earlier that one of the jurors, a middle-age blonde woman, was clearly out of shape and looked pretty pale to begin with. I now watched as she slipped out of her chair and down below the level of the jury box like a ship sinking below the waves. Apparently my slamming narrative was more than she could handle. This was her “you can’t handle the truth” moment, and I felt a little guilty as she fainted not only in front of me but everyone else in the courtroom.
Fortunately, paramedics from a nearby fire station hit the eject buttons on their Barca Loungers and quickly arrived to revive her. Back to normal, she was released from further jury duty. For obvious reasons, I was asked to tone down my testimony. The good news: In the end the suspect was convicted.
The arrival of a “subpoena duces tecum” in the training office may also signal a coming court confrontation. If you aren’t familiar with this phrase, it’s a court order issued at the request of one of the involved parties. Translated, the phrase means to “bring with you under penalty.” In cop speak this probably means that an attorney wants your department to produce materials and/or evidence that are relevant to the issue at hand.
In our context, it often means that we must comply by producing training documents and records that bear a relationship to what has occurred. This is where a law enforcement trainer becomes part of the legal food chain. Rather than ignore this possibility, expect that it will happen during your tenure as an instructor and prepare for it.
One of the keys to defending your officers and your agency is proper documentation. I know you’ve probably heard this a gazillion times. But it can really pay off when a duces tecum arrives.
As a trainer and training manager for my old department, I occasionally had to deal with such court orders. With all the other demands on a trainer’s time, a common initial reaction may be something like, “Oh great, I’ve got to waste precious time digging up a bunch of old records.” That’s understandable, but it’s also wrong. If not handled properly, it could turn out to be a very costly attitude.
First off, if proper documentation was filed after each training session, then the job of fulfilling the court order is going to be a lot easier. But what constitutes proper documentation?
A lesson plan or course outline is a good start. Preferably, this was reviewed and approved by someone of higher rank before the training started. Subjects taught—in the classroom, on the range, in the defensive tactics mat room, driving a patrol unit—whatever—should be based on a lesson plan or course outline so that the material is consistently presented, regardless of which instructor runs the class. Another important form of documentation is a roster recording who participated in the training. When it comes to a subpoena duces tecum, we want to prove that the officers named in the lawsuit completed the course of instruction. We do that by producing copies of the roster.
Another element to be aware of is the testing process. When some form of exam or qualification or demonstration of skills is carried out, it should be recorded and filed away for the legal challenge that can come in the future. Important policy sections—use of force and deadly force, pursuits, less lethal, SWAT, patrol rifle and the rest—should be reviewed and tested, with the results archived.
All of this is so much easier these days thanks to computers and scanners. Building a retrievable data base isn’t a difficult task. But a key ingredient is the people who maintain this resource. To my way of thinking, the instructor of record should be the one inputting the data. But we know that that won’t always happen.
A good alternative is having the training officers and civilian workers, who often take care of these files, enter the data. I had the good fortune to work in the training unit with two extremely organized civilians who knew the importance of keeping our training files up to date and retrievable. Once they know their job, folks like this are a valuable part of the training function. Unfortunately, it’s been my experience that they’re sometimes taken for granted even by the instructors they support.
I suggest you keep your own training file. Any courses you attend, books or handouts you read, trips to the range, membership in professional organizations and classes you teach, all are part of your legal DNA. Keep such a record up to date and ready for the day you may be mandated to prove your worth as an instructor.
Good instructors recognize that solid documentation is sometimes synonymous with credibility. It is, in essence, a form of legal insurance. This means that the department might be saved from losing an expensive lawsuit. Similarly, instructors who provide a definitive and positive presentation of facts and opinions during the legal process have taken it to the next level: They’ve done something positive for their students, their department and themselves.