Cross-Examining a Police Officer

Cross-Examination is the process where an attorney gets an opportunity to question an adverse witness.  The party calling the witness will get to ask their questions first (called "direct examination"), and questioning by the other party or parties' attorney(s) will take place next.  In criminal cases, prosecutors call a variety of witnesses including alleged victims/complaining witnesses, percipient witnesses (people who witnessed the event), expert witnesses, and very often police officer witnesses.  The prosecution may call a police witness to describe what they saw, describe their investigation, contradict another witness' statements, and more.  Police officers spend a lot of their time testifying and preparing their testimony.  In a sense, they are "professional witnesses" and getting the information that you need out of them, as an adverse party (representing the defendant they are seeking to lock up) requires a great deal of skill and experience.  Knowing which questions to ask, which questions not to ask, the order in which to ask questions, the manner in which to ask questions, and how to confront false statements are skills which take a strong grasp of the law, but also an understanding of psychology, rhetoric, and practice.  Cross-examining a police officer is an important part of trials, preliminary hearings, as well as motion hearings, such as motions to suppress evidence.

WHY IS CROSS-EXAMINATION OF A POLICE OFFICER SO IMPORTANT?
In a criminal case, one of the most important skill sets might just be cross-examination of a police officer.  This means that in order to obtain the best result in a case, it may be vital to have an attorney who excels at the practice of cross-examination, and who is not intimidated or impatient when questioning a witness who is reluctant to give the answers the defense needs.  With cross-examination, your attorney is generally trying to raise doubt about the government's evidence against you.  In many California criminal cases, the issue of witness credibility is key. This is because, by and large, most cases present two sides of the same story. Whichever side the judge or jury believes is generally the side that prevails at trial. Whether it be the testimony of a complaining witness, the arresting or investigating police officer, or the defendant himself, the importance of establishing that a witness is being truthful is crucial to the side calling that witness. On the flip side of the coin, the opposing side will often attempt to establish that an adverse witness is biased, untruthful, or somehow mistaken about their remembrance of the facts. This is most often done through cross-examination.

WHAT CAN A CRIMINAL DEFENSE ATTORNEY DO?
Your criminal defense attorney will look to find discrepancies in the officer’s testimony and try to call into question the most damaging portions of an officer's testimony.  The defendant may not get to tell their side of the story, so a lot of it does come down to effectively questioning the police officer, making sure we know exactly what their testimony would be impeaching them if their testimony is inconsistent.  In a case where the police say one thing and the defendant says something totally different, how do you go about breaking that down?  We understand you can question the police officer in a trial, but how else do you go about finding out that there’s truly a discrepancy and proving it, or at least casting doubt on it?

CREDIBILITY
An important part of all cross-examination is attacking the credibility of an adverse witness.  The prosecution is calling this police officer in order to put on evidence of the defendant's guilt.  If the jury can see the testifying officer is being untruthful, biased, or careless with the facts, then they will be less inclined to believe incriminating testimony.  This does not necessarily mean that the officer must be accused of deliberately misstating the facts, though that happens often (read here about police "testilying").  A police officer might also lose credibility with the jury if the cross-examination can demonstrate the officer's bias, lack of regard for the veracity of statements, or failure to conduct a thorough investigation.   Note that much of the attack on an officer's credibility will be "intrinsic" meaning that the officer's own testimony is used to discredit them.  But, there are also "extrinsic" ways to contradict their testimony, such as calling other witnesses, or by using audio or video footage to show what was really said or what really occurred.

GETTING THE PARTS OF AN OFFICER'S REPORTS WE LIKE INTO EVIDENCE
Generally, when a police officer has previously written a report or testified to a fact that helps the defendant's case (e.g. a description of the suspect that does not match the defendant) is one of the easier parts of questioning a police officer on the witness stand.  Still, this must be done with care and skill to maximize the impact the fact can have.  This is done by first getting the officer to commit to the accuracy of their report or prior statements, the importance of being complete, thorough and accurate, and then shifting focus to the helpful portions of the prior statement.

WHAT ABOUT WHAT ISN'T IN THE REPORT?
Novice attorneys are notorious for framing their cross-examination around a police officer's report.  While there are often helpful facts in an officer's report, the most helpful facts are likely what they did not put in the report.  Thorough defense investigation, careful review of the prosecution's evidence, consultation with experts, and of course, experience handling criminal cases are very important to understanding the kinds of information police may intentionally leave out of their reports or testimony.  Since police are not likely to volunteer certain information, getting it into evidence takes preparation, skill, and experience.

USING TECHNOLOGY IN THIS MODERN WORLD
Using audio and video was briefly mentioned above as a way to contradict an officer's testimony.  More and more, police are equipped with body worn video cameras, dash cameras, and audio recording devices.  Moreover, there are more (and better quality) surveillance cameras and cell phone cameras than ever before.  This means that in instances where the police lie or make a mistake, there may be an objective way to prove that.  The quality and availability of such technology is light years ahead of where it was even a decade ago, and has become an incredibly important element of criminal defense.  Knowing how to get this evidence, as well as how to present it and use it in court is not a very important part of criminal defense.  During cross-examination, a recording or video may be used to contradict an officer's testimony, or simply, the officer may be used by the defense to get that evidence in.

IF YOU OR A LOVED ONE HAS BEEN ARRESTED, CHARGED WITH A CRIME, OR IS UNDER INVESTIGATION FOR A CRIME IN CALIFORNIA, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE ATTORNEY.  213-375-3775.

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Useful LA Criminal Defense Resources:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department 
LA County Law Library
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule
Los Angeles Public Defender
Los Angeles City Attorney
Los Angles District Attorney
Office of the CA Attorney General

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