By The Honorable Earl G. Penrod
MOST LAW ENFORCEMENT OFFICERS appreciate that testifying in court is an important responsibility and merits proper preparation. Being examined and cross-examined by aggressive attorneys can be somewhat stressful, regardless of the nature of the case. Police officers also should anticipate and prepare for the special challenges and potential pitfalls of testifying in a case with a party proceeding without an attorney.
Whether the case involves a traffic citation, a criminal charge, or a civil case, an officer must interact professionally with an unrepresented party, who may be referred to as a self-represented litigant, a pro per party or a party proceeding pro se. Although some self-represented parties can cause a case to be more challenging for witnesses and other participants, self-represented litigants are deserving of respect. After all, access to the courts and the right to have one’s case fairly heard and decided does not depend upon one’s ability or willingness to hire an attorney.
When being examined by a pro se party, the officer may be frustrated by questions that are not easily answered or may seem to be more a statement than a question. Because the question and answer format of testimony is not a typical method of communication in every day discourse, pro se litigants sometimes struggle to properly examine or cross-examine a witness. The officer should not criticize or respond sarcastically to poorly worded questions. It can
be counterproductive to directly challenge the pro se litigant’s meandering and verbose question or respond to a question with a question. Also, an officer must be careful not to appear to be arguing with the litigant when that litigant challenges or contradicts answers provided by the witness.
If a pro se litigant is unable or unwilling to ask understandable and answerable questions, the police officer must remain composed and professional and respond to the question as directly as possible. However, if the questioner persists in conducting an improper examination, the officer should expect an objection by the prosecuting attorney or the attorney for the other party in a civil case. And while it may seem to come far too late in the process, a judge may eventually step in and provide some direction and admonishment as appropriate to maintain order and decorum, even if the other side does not offer an objection.
TIP TO TESTIFY: When being examined or cross-examined by a self-represented litigant, patience is an important virtue for the officer.
The Honorable Earl G. Penrod is a Judge of the Gibson Superior Court in Indiana.