There’s a recent New York Time article going around right now about why some police officers lie under oath. It’s a good piece and I’m glad it’s out there. Folks have forwarded it to me a few times now; the general sentiment being that it will be useful for when I cross-examine police officers. While the article is interesting, it’s not particularly relevant for trial work in criminal defense. Today’s post is about the prevalence of lying police, and trial tactics in dealing with truth-deficient witnesses.
A few years ago when I was working at the public defenders, a friend of mine was working in Anchorage for the summer as a prosecutor. He and I would get into good-natured debates about the role of law enforcement, prosecution, defense: all the fundamentals of the criminal justice system. They were fun conversations.
When my friend came back to Seattle he did some pro-bono work with another public defense agency helping out with a serious felony trial. After a day of testimony, my friend called me:
- Friend: “You’ll never guess what happened at trial today.”
- Me: “What’s that?”
- Friend: “I was doing a cross-examination of one of the detectives. I asked a question and she turned to the jury to answer and SHE LIED! She lied on the stand!”
- Me: “Hmm? Oh yeah, cops lie sometimes on the stand. It’s annoying.”
- Friend: “WHAT?!”
And my friend never went back to prosecution work, which means I won all of our debates. But I digress.
My friend was shocked that an officer of the law would lie, but he really shouldn’t have been. Of course cops lie sometimes. And of course defendants lie sometimes, and other witnesses lie sometimes too. Every person on the witness stand is a human being, and that means they have the potential to lie, Class B felonies notwithstanding. What I appreciate about the New York Times article is that it exposes what motivates some officers to lie. A defendant could lie to save his own skin – that makes sense to most of us. An officer’s reasons may be a little more amorphous, but as the article shows, are no less compelling.
I’ll make a couple quick points here before getting into the practical aspects of all this. The first is that the vast majority of police officers are honest, hardworking people that try to do the best job they can. I think the odds of you finding a corrupt or truly deceptive police officer in any particular jurisdiction are probably slim. To ignore the possibility completely is a little naive. But overall it’s not something I really worry about when dealing with the police.
The second point is that every ethical attorney I know, including myself, counsels their witnesses to tell the truth. Not just because most lies are quickly unraveled and the case is shot to pieces upon being discovered, but also because the system only works when everyone tells the truth. That may mean someone doesn’t take the witness stand at all, because they have nothing helpful to say. But if my witness is testifying, I promise I’ve told them numerous times to only tell the truth.
So, practical stuff. Does the New York Times article mean that I get to accuse cops of lying all over the place? Is that good trial practice? As I said in the beginning, the nature of real-life practice means the article is not as helpful as you might think. The possibility always exists for any witness to be hiding something. The real question is how to use that possibility to a client’s benefit. Unlike what you see in the media, not all cross-examinations involve witness-stand confessions or are engaging and dramatic.
The problem with accusing someone of lying is that it’s such an absolute accusation. You are not only saying that they deceived the jury, you’re saying they did so willfully and they had no justification for it. It’s a powerful accusation if you can pull it off but 1) it’s rare that it actually happens, and 2) it’s even rarer that when it happens you can sufficiently prove it. If you do have the goods, definitely waive those facts in front of the jury from the start of the case until the end. But if you don’t have the goods, you are the only who looks unprofessional, vindictive, or a liar. Most defendants don’t do well when the jury thinks the defense attorney is so morally culpable.
In cross-examination, the rule is you only ask questions you know the answer to. I can think of one time I asked an officer if he had been lying, because I knew he had been, and he admitted it right away. He had lied to the defendant during an investigation, telling the defendant that a particular street corner had video cameras. “Just confess, we already have everything on video.” And I asked if he had been lying to the defendant when he said there were video cameras at the corner. And the officer admitted he had indeed told a falsehood. And then the prosecutor spent some time restoring his image, discussing accepted police practices, the use of a “ruse,” and so on. My question didn’t do much damage because the prosecutor was right – it was a socially acceptable form of lying.
But what’s not acceptable is sloppy or deficient police work. As I said, for a variety of reasons I rarely get anywhere accusing a police officer of outright lying. But a police officer omitting data or presenting a slanted view? That’s a very fertile area for cross examination.
I had a case a while back where some residue on a car’s tires was extremely relevant. The officer had taken pictures of two of the tires but not all four. One of the pictures was damning, and the other one wasn’t. The officer swore up and down that the tires that weren’t photographed were damning too, but he had to concede that not only were those particular tires not photographed, they weren’t even referenced in his police report. Was the officer lying about what the other tires showed (or that he had even looked at them)? I don’t know. But I made a big deal in my closing argument about a deficient investigation and not simply giving the officer the benefit of the doubt when he actually had a camera at the scene and chose not to use it. I was told later by the jury that the deficient investigation was one factor in why they came back with a not guilty verdict.
Whether a police officer is less than forthcoming on the stand, or merely sloppy, it doesn’t mean my client is in trouble. I can work with anything. As a Seattle Criminal Defense Attorney, my job is to get the client that ideal result with the tools available.