W. Clay Abbott
This past April, I was teaching on cross examination at Life Savers, NHTSA’s annual conference, in Portland, Oregon, when I learned something wonderful. I was discussing meeting with your officer before trial—material I brazenly lifted from my dear friend and former Denton County prosecutor Jimmy Angelino—when an officer raised his hand and made a terrific suggestion. I am ashamed to say I did not get his name and cannot give him proper credit.
He told the group of about 80 prosecutors and peace officers from across the country about a technique he used with new and old officers he supervised in a DWI unit. He explained that he tried to observe every time one of his officers testified. He and the officer then stayed for closing argument, and once the trial concluded, he asked for a little of the trial prosecutor’s time for a post-trial conference. He detailed things he observed during direct and cross that went well, as well as parts that went poorly—things that could be improved in the courtroom, in the reports, and during the investigation—and he solicited similar observations from both the testifying officer and the prosecutor. Whether the trial resulted in a conviction or an acquittal, he used each one as a training lab. For one of the very few times in my life, I was speechless, albeit only for a brief moment. What a great idea!
I could not begin to count the number of awkward directs and disastrous crosses I have been part of or observed in DWI cases. I often saw the same awful techniques and bad habits applied by trial attorneys, myself included, and officer witnesses in the very next outing—it was the very definition of insanity (as Albert Einstein put it, “doing the same thing over and over again and expecting different results”). As I stood there in Portland, speechless, my brain raced. Professional sports teams begin practice every week looking at film of the last game. Why do we not use the same strategy? Of course, I know the answer: As prosecutors we are already thinking about the next case. If we won, we are ready to go back to the office to brag. If we lost, we just want to disappear. The long and short of it is that we squander an excellent chance to improve our skills and the abilities of our officer witnesses.
Don’t make that mistake anymore. Make sure part of your routine is sitting down after trial with your officers and discussing what went wrong and right. Invite everyone who was part of the trial. Never forget the tremendous resource you have in your investigators and victim assistance folks who all suffer silently in trial as they see the same mistakes repeated year after year. Give a fair critique and graciously receive fair critiques. When you lose, listening to them will be harder, but you will learn even more from those cases.
Here is a partial list of topics you should consider:
• direct questioning by the prosecution
• direct testimony by the officer
• use of visuals and demonstrations
• defense strategies
• testimony on cross
• witness demeanor
• report writing
• videotaping and presentation of the video
• questioning and other investigative techniques
• traffic stop issues
I constantly have officers and prosecutors ask me to create mock exercises, which are fine, but we all have a real educational opportunity at the conclusion of every single trial. There are no abstract or hypothetical situations here. Each side is presented with so many practical and memorable examples of what worked and what did not. There is also a true opportunity here for supervising attorneys. Grab officers and junior attorneys alike and give timely advice to both at a time they should be most able and motivated to absorb it.
Post-trial discussions should be discussions, not brow beatings. Officers have something to teach prosecutors, and prosecutors need to train officers if justice is to be achieved. Learning from capable defense counsel is preferable to repeated defense drubbings. After losses, a cooling-off period is advisable. My practice for years after a colleague lost a case was to send him home and discuss it after a good night’s sleep. I think this is wise.
When critiquing trial performance or trial testimony I have several suggestions.
Prepare for this meeting. Sure, time is a luxury, but plan what you want to say anyway. Don’t waste this opportunity with a freeform flood of half-developed ideas. Organize, prioritize, and create practical suggestions and solutions. Be detailed and specific so that you can replay as close to verbatim what happened at trial. Give examples, and if the situation allows, practice what you suggest. When you take your time, real and lasting learning takes place.
Never critique what you can’t fix. This kind of help is no help at all, it is just placing blame. No one needs to be told they sweat a lot or have a stuttering problem. Trust me—they know. Pointing it out is counter-productive and only hurts feelings, hinders improvement, and destroys relationships. If you can’t think of a way to fix the problem you noticed, leave it alone.
Resist the urge to fix everything. Simply put, too much critique locks down an earnest recipient and alienates a less receptive one. No one can change every bad habit they possess at once. Prioritize your points, curing problems that are reversible first, “case losers” second, and personal peccadilloes last. When I used to critique mock trials, client counseling, and moot court at Texas Tech School of Law, I violated this suggestion as badly as ever. My long critiques were as legendary as they were ineffective. My poor captive audiences sat politely with glazed eyes learning nothing as every suggestion I could think of battered their brains. Brevity produces clarity and retention. If your officer or new prosecutor can’t remember what you said, his mistake will be repeated. As someone much smarter than I once said, such repetition is insanity.
Listen as well as talk. I can’t tell you the number of times I have had officers at my schools say to me, “I just wish my prosecutors told me exactly what they want.” Post-trial meetings are an unparalleled chance to get on the same page. Make sure officers and new prosecutors get to ask questions, and help them work through your suggestions. We all learn more by talking than by passively being talked to. By listening as much as you talk, you will also very quickly learn if the point you were trying to make was received. Applying this rule will also make the things you have to say a learning experience, not just a gripe session.
Conclusion
Officers generally don’t go through the effort to make an arrest when it is not justified. Prosecutors don’t generally try defendants who should be acquitted. But investigative, advocacy, and trial mistakes explain most of our losses at trial. If we fail to correct those mistakes when we identify them, we are doomed to suffer more such losses, resulting in injustice. And repeated injustice is insanity.