You’re involved in a drug investigation targeting a commercial enterprise trafficking cocaine from Bogota, Columbia, into your city and the more rural parts of your state.
This was one of the first cases I co-counseled as a federal prosecutor. From here, the facts are tailored.
You’re on a team surveilling one of the residences involved in the enterprise into which two subjects previously identified by an undercover officer as sellers enter. Shots are fired and the two identified individuals come running out, jump into a car, and begin to flee.
You’re part of the team that enters the residence and you find two dead adults in what appears to be a drug deal gone badly. Lieutenant Doright and another team member pursue the fleeing car and apprehend the two, who end up on trial for drug offenses and two homicides.
The Trial
Lieutenant Doright testified before you that the car he pursued was a green Ford Escort. You don’t know this as you both know you’re not supposed to discuss your testimony with other witnesses before or during the trial.
You testified when asked by the prosecutor that the car you saw flee was a blue Chevy Nova. You’re now on cross examination:
Q: Officer, you testified the car my clients allegedly left the scene in was a blue Chevy Nova, correct?
A: Yes, ma’am.
Q: Are you aware Lieutenant Doright testified a short while ago that car was in fact a green Ford Escort?
A: No, ma’am.
Q: We know the jury will decide who said what. But, assume for a moment Lieutenant Doright did in fact testify the car was a green Ford Escort.
A: Alright.
Q: Which one of you has provided false testimony about the car?
A: Neither, ma’am.
The defense attorney will lead you through questions about how the car couldn’t be both a Chevy and a Ford, a Nova and an Escort, green and blue – to which you will agree. Then the defense attorney will try to get you to acknowledge that, assuming even one of you provided “true” testimony, one of you had to have provided “false testimony.”
Often in this scenario, officers will now back off their initial answer of “neither” and acknowledge one of the statements has to be false and then the officer is back to:
Q: Which one of you provided false testimony?
I’ve seen officers at this stage:
• Dime out Lieutenant Doright or
• Say “I don’t know,” only to then be asked, “So you both could’ve provided false testimony?” or
• If they acknowledge it was likely them since the Lieutenant followed the car and stopped it be asked, “What other false testimony have you given?”
The correct answer when faced with an honest inconsistency between officers’ testimony is — and remains — “neither” of you have provided false testimony, which intentionally suggests perjury. If the defense presses the matter, the truthful answer is:
A: Clearly one of us, possibly both of us, has made a mistake, ma’am.
An Honest Mistake Can Boost Your Credibility
When I train police and prosecutors about inconsistencies in police reports, I tell them to ask whether it relates to an important or unimportant fact. If it relates to a fact that could raise a reasonable doubt about a defendant’s guilt, the inconsistency must be resolved through further investigation, or the case won’t go to trial.
In our scenario, it doesn’t matter what make, model, or color the car was. This isn’t a mistaken identity defense. The defendants have long been ID’d based on recorded and unrecorded undercover eye witness surveillance.
My home state of Alaska’s criminal pattern jury instruction advising jurors how to decide the credibility of witnesses tells them they may consider the consistency of the witness’ testimony and whether it is supported or contradicted by other evidence. It also states:
"[I]t is not uncommon for two honest people to witness the same event and see or hear things differently. It may be helpful when you evaluate inconsistencies and contradictions to consider whether they relate to important or unimportant facts.”
Inconsistencies about unimportant facts can bolster witness credibility. It gives officers a chance to acknowledge a mistake. What’s your reaction when someone looks you in the eye and says, “I made a mistake” Usually, it leads you to think that they are honest and human.
Even if your jurisdiction doesn’t have the above pattern jury instruction, your prosecutor can argue its common sense notion, and that jurors in this case know the two officers are honest because they honestly reported what they saw – they didn’t collude and match up their stories.
Honest inconsistencies about unimportant facts — forthrightly acknowledged — can actually be a good thing. Look for them and welcome the opportunity to testify, “Clearly, one of us, maybe both of us, made a mistake.”
