Dallas criminal defense lawyer Robert Guest, at the blawg previously known as  I Was The State, has a great post about Texas police being taught to testify in DWI cases from the “NHTSA Standardized Field Sobriety Student Testing Manual.”  Before anything else, it should be born in mind that this is produced by the National Highway Transportation Safety Administration. 

While it is certainly appropriate, if not obligatory, for the NHTSA to be involved in providing guidance and proper practices for police to conduct sobriety checks (imagine what they would come up with if left to their own devices), one has to wonder whether government has any business instructing police how to testify on the witness stand in order to deflect or avoid problematic cross-examination.  Defendants, especially the innocent ones, are American citizens and taxpayers too.  Doesn’t the government have any interest in not convicting the innocent? 

In any event, Robert post some details:

The manual includes, inter alia, training on how an officer should testify in court. DWI officers are professional witnesses, trained and paid to speak in court. Some of the manual’s tips are pretty mundane; read the police report beforehand, listen carefully, take your time, speak clearly. Not too exiting.

Training Officers To Be Ignorant
Good propaganda demands blind adherence to principle. In our case officers are taught to never question “the studies” or the breath test machine.

Here is how the manual instructs officers to answer questions about the breath test machine, the Intoxilyzer 5000.

From the manual

You are not required to know, and in fact know nothing, about the Intoxilyzer 5000, or your jurisdiction breath test instrument, its internal workings or anything other than how to operate it and take a breath sample from a defendant…. Never testify to its internal workings, or the defense attorney will discredit you and make you out to be a “thinks-he-knows-it-all who really knows nothing

For criminal defense lawyers, the fact that cops are trained to testify is routine.  For reasons unknown, it always seems to come as a surprise to others. 

We prepare our witnesses for testimony, as do prosecutors.  The difference for cops is that they are not merely prepared in advance of the particular case, but trained to be professional witnesses. 

In New York (and I assume elsewhere), police take a course in the Academy on testifying.  They are taught how to present themselves to a jury to appear credible.  They are taught how to avoid answering questions that might prove difficult later on.  They are experts at giving vague and meaningless answers on cross-examination, after having provided precise detail on direct. 

This is every bit as much of their job as turning on the sirens when they see a black man driving a new BMW person who may be breaking the law.  Frankly, if police weren’t trained to give testimony, I would think that law enforcement was a bunch of dopes.  Knowing that cops testify at trial, one would have to be a blithering idiot not to teach them to do so effectively.

Still, this seems like it’s just not “fair” in that the jury, carefully watching the witness’ demeanor, listening to his tone of voice, assessing his degree of responsiveness, falls for witness specifically trained to appear truthful and accurate when he could be lying through his teeth.  Life is unfair.  Trials are unfair.  Some witnesses are born good liars, others require training. 

But Robert’s post draws a clear distinction between the good and the bad.  It is not enough that police are trained to be the most convincing witnesses they can be, but that the manual, put out by our friends and paid for by our dime, tells them what to say and what not to say.  When that conflicts with the truth, that’s subornation of perjury.  When they follow the instructions, that’s perjury.  That’s a problem.

On cross-examination, many criminal defense lawyers will question a cop about their time in the Police Academy, and some of the classes they took, including the class teaching them how to testify.  We get it out in front of the jury to make clear that this isn’t some guy off the street offering evidence, but a trained professional. 

But it’s often necessary to take it a few steps further.  When the cop-witness, on direct, remembers everything in excruciating detail, how does he then not remember much of anything on cross?  (As an aside, why doesn’t the prosecutor jump up and announce that his witness’ testimony is false because they just talked about the specific details that very morning in preparing for his testimony?)  There’s deception by omission as well as affirmative deception.  That’s why they swear to tell the “whole truth.”

And that’s why Robert’s post about the manual is so important.  It’s not just the NHTSA manual, but for the fact that these are written instructions, produced by a government agency, to deceive.  They are taught to “not know” things that they do know, and to know things they don’t.  Robert wants you to know this when it comes to DWI in Texas.  I want you to know this when it comes to other testimony as well.