In almost every criminal trial, there will be police witness testifying on behalf of the prosecution.  They will be called to the stand in their “I’m testifying today” outfit, whether it’s a suit or a uniform with shiny leather, hair nicely combed and clean shaven (at least no day old growth of stubble).  They will take the seat, swear to tell the truth, and give their testimony.

But as Robert Guest points out at I Was the State, that scrubbed-up officer may not really be giving testimony.  What happens, and frankly happens in almost every case, is that the officer is repeating orally what he wrote down in his reports shortly after the arrest.

Like most of us, we do our job every day and the details, well, they begin to blur.  One defendant looks like the next.  The facts of one case become indistinguishable from another.  It all looks the same after a while.  So a year or two later, the officer has at best minimal recollection of your defendant and your case. 

The dirty little secret is that the officer didn’t come to court that day to testify without a few minutes of preparation.  He read over his reports.  He read his grand jury testimony.  He talked to his fellow officers to find out what they were going to say.  And he is magically fully familiar with the case, right?

Not exactly.  The officer may be capable of repeating what his report says, but he that’s as far as he can remember.  As Robert states, police reports are not admissible proof.  You can’t cross-examine them.  They are prepared by the officer for the purpose of supporting his actions.  They are self-serving, and they tend to be a summary of the bad stuff, just enough to make the case without giving the defendant anything. 

But a living witness can be cross-examined, and that’s why the officer is required to take the stand.  But if the officer doesn’t remember anything beyond what he wrote in his reports, then the right to cross-examine witnesses is illusory.  Ask a tough question and the officer response will run the gamut from “I can’t remember’ to some made-up response that is consistent with what he’s written down.  He’s not stupid, you know, and he did go through Police Academy training in how to be an effective witness for the prosecution.

The idea behind cross-examination is to test the witnesses memory, challenge the conclusions and bring out the details that do not support the prosecution’s theory.  This can only happen if two things occur simultaneously.  First, the police witness has to be truthful, meaning willing to answer questions honestly even if it does not help his cause.  Second, the police witness must have a fully viable memory of events, so that he can respond honestly if he so chooses.  Without either, cross-examination doesn’t work quite as well.

You can’t quite blame an officer for his or her lack of memory.  After all, most of us can’t remember what we ate for breakfast that morning.  But the officer can be blamed for not being honest about it.  I can only remember one time in 25 years when an officer testified that he really couldn’t remember anything about the case, and that his entirely testimony was based on his reports.  Ironically, even with this admission, the judge allowed him to testify anyway, showing open contempt for the defendant’s right to counsel and cross-examination of witnesses.  Since the trial resulted in acquittal, the ruling was never tested.  Good for the defendant, but too bad for the law.

In possibly the most cynical example I know of, and a case where I’ve just completed the appellate brief, a cop witness testified on direct that the car involved in a case was made by one marque.  After a 5 month hiatus between direct and cross (don’t ask, it’s another huge due process issue), the officer was back on the stand for cross-examination.  During this testimony, the cop insisted that the car was another brand.  Defense counsel hit this conflict hard, over and over again, in his questions.  Then the prosecutor, on redirect, tried to rehabilitate her witness, and he again insisted that the car was the second brand, not the one he said on direct.  The make of the car was critical to the issue at hand, and this testimony was huge.

So what did the judge do about it?  She waved her arm and it magically disappeared behind the veil of judicial rationalization.  The witness, she concluded, testified accurately on direct, and had simply forgotten the correct answer when he returned to the stand for cross.  No problem.  Direct was correct.  Cross was just a silly mistake. 

Perhaps the judge was precisely correct, under our secret, hidden, don’t tell the public view of what testimony is really all about.  But it was an overt display of the meaninglessness of the police officer’s testimony.  Testimony was a dog and pony show, while the players all know what really happened.  If a direct, major conflict in testimony on a critical point can just be waved away as a “mistake”, then there is no point to giving testimony at all.  And certainly no point to cross-examination.  And therefore no point to the defendant having a lawyer, since no matter what the lawyer does to undermine the prosecution’s case, it’s just a mistake.

This bit of judicial slight-of-hand will end up in front of an appellate court.  We’ll see what they have to say about it, and whether they agree that testimony is just another step we have to go through to get to the part where the judge sentences the defendant.