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Cops: Stop defending yourself against this attack in court (it makes you look guilty)

Defense attorneys know that if the jury doubts the credibility of an officer, they may doubt the credibility of the entire case

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The defense doesn’t want to spend time on the evidence, they want to attack the credibility of police officers.

Photo/Pixabay

The defense doesn’t want to spend time on the evidence – it proves the defendant guilty. So, the defense attacks the deliverer of the evidence – the witness. If jurors doubt the credibility of the witness, they might doubt what the witness is telling them.

Defense attorneys attack the credibility of police officers because they get the biggest bang for their buck if the jury doubts an officer. The jury may doubt the credibility of a lay witness and still consider the rest of the evidence.

But if the jury doubts the credibility of an officer, they may doubt the credibility of the entire case.

A common attack

You leave stuff out of your report. The defense attorney knows this. The defense attorney hopes to make you feel defensive about this in front of a jury. In countless cross-examination scenarios nationwide where I play the defense attorney questioning officers, it goes like this:

Q: Officer, your report has a summary or synopsis section, doesn’t it? [If not, the questioning simply begins with the narrative section of the report.]
A: Yes.
Q: What does a summary or synopsis mean to you?
A: A brief overview or thumbnail sketch of what’s in the rest of my report.
Q: So it doesn’t include everything, does it?
A: [Pause, as the officer thinks about “the trap.”] That’s correct.
Q: What did you choose to leave out?
A: [A longer pause as the officer thinks how to word a “good” answer.] Um, uh, details that I included in the narrative section of my report.

At this point, the defense attorney knows this officer is defensive about the jury hearing that he left things out of his report because the officer wants to suggest that anything left out of the summary is in the rest of the report.

Q: But you don’t include everything in the rest of your report either, do you?
A: [Pause, trying to think what he left out that the defense is going to spring on him.] Yes, I do.
[What the officer means is that he includes everything that’s relevant in the rest of his report.]
Q: That’s not true, is it, officer?
A: What do you mean?
Q: You saw and heard lots of things in the course of this investigation that you didn’t put in your report, isn’t that correct?
A: [Pause, while the officer again tries to figure out what he left out that the defense is going to attack him with.] Well, yeah, but only stuff that wasn’t relevant.
Q: But that’s not what you first said under oath and penalty of perjury, is it? You testified you included everything and that is not true, is it?
A: Well, not if you put it like that.
Q: I didn’t put it any way, officer. I simply asked whether you included everything in the rest of your report and you insisted you did, correct?
A: [If the officer tries to explain or continue to defend himself he’s just going to give the attorney more to cross-examine him on.]
Q: The truth is you leave lots of things out of your report, don’t you?

The officer can either admit this common-sense fact or continue to try to defend himself. If he does the latter, it will simply lengthen this cross-examination that has nothing to do with the evidence. If the officer tries to explain he only leaves out things that aren’t relevant, the defense attorney will make him admit that the decision about what’s relevant is personal (he is the person that makes that decision) and subjective (no two officers reports will read the same).

Then the defense attorney will ask if the jury could do their job better if they had all the facts – not just the ones that the officer personally, subjectively thought they should have.

The Solution

Defense attorneys count on you assuming that if the jury hears you leave lots of things out of your report, they will think you purposely left something exculpatory out. So, you get caught defending yourself against the common-sense fact that you don’t include everything.

Let’s do this over – beginning with the summary section of the report.

Q: So it doesn’t include everything, does it?
A: No, ma’am, not at all.
Q: What did you choose to leave out?
A: Countless things, ma’am.

The defense attorney is not going to ask you to name any of the things you left out of the summary because if you did, your examples would reveal this cross-examination as the red herring it is.

Q: Well, you also leave lots of things out of the rest of your report, don’t you?
A: Yes, ma’am.

Again, the defense attorney will either move on, which is fine, or, if they ask what kinds of things you left out, your examples will reveal this as a red herring. If the defense attorney tries to push you about other things you might’ve left out [she won’t but this is what officers tell me is the problem with admitting they leave things out], sincerely and politely respond:

A: Ma’am, is there something particular you believe I left out you think I shouldn’t have?

There isn’t. If there was, the attorney would’ve filed a pre-trial motion to dismiss the case because of a Brady violation. In Brady v. Maryland, the Supreme Court ruled the police must collect and preserve, and the prosecution must disclose any exculpatory evidence.

The defense wants to get you defending yourself. What kind of people act defensively? Guilty people. And that’s what the jury sees. Don’t let the defense attorney put you on trial.

This article, originally published 06/22/2016, has been updated

As a state and federal prosecutor, Val’s trial work was featured on ABC’S PRIMETIME LIVE, Discovery Channel’s Justice Files, in USA Today, The National Enquirer and REDBOOK. Described by Calibre Press as “the indisputable master of entertrainment,” Val is now an international law enforcement trainer and writer. She’s had hundreds of articles published online and in print. She appears in person and on TV, radio, and video productions. When she’s not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Contact Val at www.valvanbrocklin.com.
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