Cross Examination

I knew all the tricks: predatory preparation; the stylings of appropriate cross examination questions; how to turn phrases back on a witness; opening doors for doubt and the ultimate prize; getting a witness to commit to facts in my client’s favor.  I had been a criminal defense attorney for 35 years (Wait . . . don’t throw the magazine down yet . . . I’ve come over from the dark side . . . I’m here to help . . .Just stay with me here!) and I thought I knew how to engage and still “win” in the game of cross examination blood sporting.  I was wrong. I knew nothing about fighting on the other side. All those years of experience and training went up in a puff of smoke in the course of my first ten minutes on the witness stand under cross examination.

I had been subpoenaed in a homicide case in which I had worked my cadaver dog on behalf of law enforcement six years earlier.  Shots in the form of snide remarks, personal attacks and eye-rolls were coming at me across the bow in rapid-fire sequence.  I found myself out of control.  Facts I knew escaped me. My ability to concentrate, think on my feet and keep my cool had checked out. The Deputy District Attorney across the well from me sat in a pool of silence, staring at his legal pad. (I swear I saw drool running from his agape mouth!)  Nothing but crickets from that side of the courtroom. I was alone.  Under attack. Out of ammo. Situationally unaware in a hostile environment with no backup. Feeling out of control I wanted to fight.  I wanted to hurt him.  I was on the verge of losing it. Seeing myself coming across the witness stand at defense counsel like a Malinois on a bite was at the forefront of my mind.

I’d like to say that I easily pulled myself together and maintained a calm, professional demeanor throughout the entire 4 hours I was on the witness stand.  This would not be true. Until the first break of the morning, I readily engaged in hand-to-hand blood sporting with the defense attorney.  Does this sound familiar? Have you been there?  I know you have because I have seen it too often in court and not just with law enforcement officers. Is the cross-examination process inherently adversarial?  Yes! Is it stressful for all witnesses?  Yes, particularly if you have never been in a courtroom setting. Are the tactics employed by belligerent defense attorney condoned by the Courts?  Often yes.  Do defense attorneys go on the attack because they really believe their clients are innocent and law enforcement is evil?  Yes and no to both.

After an honest and sober “WTF” conversation with myself in the bathroom mirror, I was able to pull my temper in check and rally up the resources and gamesmanship I had learned over the years about the art of cross examination and turn the tables back on the defense attorney.  I re-tooled my tactics to align with what I knew was in the defense’s arsenal.  I made it through the grueling process with empathy for those who aren’t trained in this blood sport, specifically law enforcement. As defenders of freedom, protectors of our communities and front-liners, law enforcement officers and K9 handlers are trained in tactical skills everywhere from Active Shooter to Wrist Twist. You are not however, adequately trained in tactics to succeed under cross examination. My goal in this brief article is to give you some basic tactics for engaging in this blood sport.

Go to the Courtroom Before You Testify.

What I mean is, go to the actual courtroom where you have been subpoenaed to testify.  Go when no one else is in there.  Walk around.  Sit in the witness stand. Sit behind the bench.  Sit behind counsel table. Walk from the door of the courtroom to the witness stand and actually sit in the witness chair. This sounds so simple, but it is enormously powerful. Create in your mind a sense of owning your own space there and stay in there until every ounce of intimidation or uncertainty leaves you.

By sitting in the witness chair particularly if you are in uniform and wearing your duty belt, you will be able to see if you can sit comfortably.  Duty belts are notorious for being too bulky for the witness chairs, forcing law enforcement to sit askance or too far forward, appearing and feeling  uncomfortable.  If that is the case and you know you will be showing up in uniform, then make arrangements to remove your duty belt at the entrance and leave it with security deputies, or insist on another chair.  In one county where I did an in-service training for local law enforcement, I was able to get new chairs in the witness stands of each courtroom to accommodate law enforcement and their duty belts.  If you don’t ask, you don’t get!

Defense attorneys and prosecutors spend most of their waking hours in courtrooms every single day.  To them it is their territory, their stage, their command post.  Yes, I even remember certain defense attorneys and prosecutors having their favorite “side” of the courtroom and their favorite chair.  All very childish, but very real.  When it comes to you as a witness, you typically come in cold.  Get ahead of the game and go in there beforehand.  I have found permission from the Judge or the Court clerks gets you a green light.

Visualize Yourself as the Authority

Because it is well established psychology that we grant authority to others on the same basis that we gave it to our parents and caregivers when we were young,[1] we must be consciously aware of when we are giving authority to those who are not truly in authority over us and don’t deserve it.  Trust me, defense attorneys take advantage of this concept and easily take the authority role during cross examination.  Don’t let them do it.  You need not be combative in taking it away from them, in fact, quite the contrary.  If you have done your homework before coming into the courtroom, you already see yourself as the authority figure for your purposes there.

At the risk of sounding zen/ woo – woo, I want to convey to you the truth that you ARE the authority when it comes to your testimony.   More than likely you are going to be asked to testify regarding some contact, incident, mission, investigation that you performed.  You will also be cross examined regarding the reports you prepared in that regard.  You are the authority expert when it comes to what you know, what you experienced and what you memorialized in your reports, no one else in that courtroom.  As a K9 handler, you are the expert, the one with all the facts and background concerning your K9.  You know the dog better than anyone. You know his capabilities and limitations.  You know why you deployed him (or you should), when and how you did and what his alert behavior looks like and what it means. Concerning your training and deployment records for your K9, you are the expert there too.[2]

One easy way to keep the defense from stealing your authority centers around where you look.  What I mean is, when the defense is asking you a question, politely look at him and face him but address your answer to the jury if you are in a trial, and to the judge, if you are in a motions hearing.  This is subtle but also frustrating for the defense attorney.  He will want to engage you, but by referencing the answers to his questions to the one who really matters be it the court or the jury, you are removing that defense attorney’s power to get under your skin. I have had officers tell me that this feels funny and somewhat disrespectful, but remember, this is a blood sport.  In fact, juries will appreciate your deference to them and so will the court. Only the defense attorney won’t like it. It slows him down and removes him from the playing field, even subconsciously. It will help you immensely to stay grounded and present in the moment when a hysterical, belligerent attorney is trying to make you uncomfortable, get you off your game or doubt your own experience.

Use the PATDOWN Method

As a defense attorney we were taught to keep a pace and rhythm in cross examination. Keep your ammunition full so you don’t have to pause.  Know where you need to go and drive the witness toward that end without them knowing. Just keep the pressure coming. A rapid pace in the questioning is the method used to keep the witness off guard and moving them in that direction.  A countermove to this is what I call the PATDOWN Method.  Quite simply it means Pause And Think, Don’t OverWork the Narrative.

A “patdown” is a term of art for law enforcement and so it is easy to remember, although sometimes not easy to do.  As the defense attorney is launching questions on cross, just pause and keep your mental faculties together.  Stay in the moment and be situationally aware and work your training.  Isn’t this similar to the mind set you are taught in high stress situations such as an active shooter or hostage situation?  Same concept, different location.  The players may look more sophisticated and less threatening, but they are not.

In cross examination scenarios, you also have something that the adversary doesn’t have, information.  Make him work for it without becoming the “bad guy” in front of the jury.  With each question launched at you, pause and think and don’t overwork your narrative.  If the question calls for a yes or no, then just answer with a “yes” or “no”. Don’t think beyond that particular question because that naturally makes you want to make excuses, offer explanations, clean up previous testimony, or make your report look or sound better.[3]  Don’t fall into that trap.  It is a trap!  Just answer only the question he asks.  When the defense attorney becomes frustrated, sarcastic or caustic because you are not engaging in face-to-face combat and are answering with short to the point answers, you will keep your cool under fire.

An important factor at play behind the PATDOWN method is that you know your report cold. I cannot emphasize it enough that you must be intimately familiar with that report and what you and your K9 did or didn’t do.  This makes the short, to the point answers easier.  Let the attorney do the follow up  “why” or “how” questions to your “yes” or “no” answers. Once an attorney ventures out into areas where he doesn’t know the answer, he has lost control of the cross in that moment.  Even then however, keep the PATDOWN .  Don’t try to offer him a lifeline by overworking the narrative.  If you fall into the trap of thinking you have to add or subtract from your report or make up or add something that may not be contained therein, you are opening yourself up to vulnerability and control by the defense.  Stick to what is in the report.  This is a blood sport. That is your narrative. That is your cover.

Another benefit of the “PATDOWN” is the jury will see you keeping your cool and see you as the safe person in the courtroom. Most juries do not like high stress, antagonistic situations in the courtroom and so they tend to defer to the one who appears “safe”.  Make that be you.

The situations where I have seen a court allow open blood sporting is when they perceive the witness to be just as antagonistic as the attorney.  In those instances, the Court may let the defense attorney “discipline” the witness who seems confrontational. Alternatively the court may admonish  both the attorney and the witness.  You don’t want that to happen.  Keep your cool and you’ll keep your credibility.

Some Phrases to Fall Back On

Just as there are rote actions you are trained to utilize when encountering dangerous  situations, there are a few phrases I can offer you to keep in your arsenal to pull out when you are on the witness stand.  These are not only designed to buy you some time to think and assess what is going on around you, but you may in fact need the answer to these questions and by politely asking them, you are engaging offensively with your opponent.

“I don’t recall”  Ever popular and used often.  Nothing wrong with not being able to remember something.

“What do you mean by  _______?”  If you do not know what the defense attorney is talking about, then ask. Don’t guess or feel as though you need to know everything he is talking about.  It is likely especially when it comes to K9 work, that he doesn’t know what he is talking about.

“Do you know what it means when a working K9 alerts/gives a trained final response/shows no interest?”  This plays also on the defense attorney’s potential for lack of understanding of working K9s.  You are the expert when it comes to the handling of your dog.  Don’t let him put a twist on something you dog did or didn’t do because he doesn’t know the correct vernacular used in a situation and what it means.

Cross examination is designed to be a truth finding exercise.  Unfortunately, too often it has morphed into hand-to-hand blood sporting competition between defense attorneys and law enforcement.  This truth coupled with the concerted efforts by the Innocence Project and liberal courts to limit or altogether eliminate K9 evidence in the courtroom make it imperative that we be equipped to engage in the fight to win. Being a tactician and not engaging in these situations emotionally will serve you and your K9 well when called upon to testify.

Rae Randolph practiced criminal defense law in state and federal courts in Minnesota and Colorado for 35 years.  She has been certified in Court as an expert K9 handler in the disciplines of human remains detection and scent discrimination trailing. She now spends her time teaching law enforcement officers effective report writing skills and cross examination tactics. She also serves as a certified K9 handler for La Plata County Search and Rescue and Colorado Forensic Canines.  She lives in southern Colorado with her husband, horses and dogs.

[1] Milner, Conan, The Trust Imperative, The Epoch Times, February 3 – 9, 2021

[2] The subject of training records for K9s is important to address, but for the purposes of this article, there simply isn’t enough space to do it justice.  This is a subject I explore in detail in my personal consultations and hands-on training with K9 handlers.  The general rule is to stay on top of your records because the day will come when you need them.

[3] It should be pointed out here that it is the duty of the prosecutor to “clean up” any testimony you may have offered that was incomplete. In my experience young prosecutors in particular are asleep at the switch when it comes to this.  Try to meet with your prosecutor before court and talk with them about any discrepancies or potential problems you may see in your reports that are part of the evidence.