Police Testimony 101

From PoliceOne.com, comes Pat McCarthy’s article “Turning Testimony from Stressful to Successful”. Before we get to the parts that a skeptical defense lawyer might highlight on his blog, let me give some kudos to the subtitle:

The baseline for all good witnesses is to just tell the truth — the benchmark for cops on the stand is that we're just doing our jobs

OK, the first part is good, tell the truth. Not that any witness who was just sworn in (“Do you solemnly swear that the testimony you shall give in the cause now pending before this court shall be the truth, the whole truth, yadda, yadda, yadda…”) should need a refresher course on the necessity of telling the truth… but, that’s certainly an admirable piece of advice to put up front in any how-to article about testifying. Especially if your audience needs that as a reminder.

The second part about “just doing your job” I like less; it reminds me of a comment I left on Bennett’s blog about a million years ago, but no need to address it here. Instead, let’s get to the more troublesome parts of the article, e.g.:

Let’s be real: We all want to get a conviction, but the verdict will be up to the judge or jury to decide, not you. Don’t look like an advocate for a conviction. Juries can sense when you appear not to be completely neutral and believe me, a defense attorney will use this against you.

True dat. If you (the police officer) appear to be shaping your testimony to deliberately help one side (the prosecution) at the expense of the other (the defendant) you can lose credibility. Then again, doesn’t the “tell the truth” part of the equation trump these concerns? And if it does, why even bother to mention this?

And what’s up with “wanting a conviction”? Afraid that a Not Guilty verdict is an attack on your policing ability? It’s not. Acknowledging that the witness wants a particular result in the case… and then encouraging him to hide this fact from the jury. That is not the same as encouraging him to be truthful.

Next up? Writing your police report. It’s gonna be a while in between collaring the bad guy, and showing up in court to testify against him, so the importance of the offense report can not be overstated. More from McCarthy on this:

Make sure that you write a good, concise, case report. If you are not good at report writing, check out the reports of other officers who do write good reports. Read those reports and see how they structure their narratives. Learn from them and make adjustments in your reports.

I’ve said it before myself: the way to learn how to write, is to read. So I’m not dead set against the advice in general, but in this context it gives me pause, particularly when it’s followed by:

Always write your reports from the perspective of a defense attorney. When you are writing your reports, imagine that you are going to be the defense attorney defending this case. If you write your reports with this mindset, you’re going to give the defense attorney less opportunity to work you over on the witness stand.

There are two vastly different ways of interpreting the idea of a cop writing a report from the perspective of the defense lawyer.

It could mean make sure you record every single fact that helps the defendant, no matter how certain you are of his guilt; but this would contradict the experience of every defense lawyer that has ever read a police report, so I doubt it.

The other explanation, that it means leave out the things that cast the slightest doubt as to the defendant’s guilt, and shade every observation in the light least favorable to the defendant, would actually jive perfectly with what most lawyers find out when they investigate their first or second case.

But if you’re only putting in the good stuff (incriminating evidence) in your report, and leaving out the bad stuff (exonerating or doubt-casting evidence), and then showing up in court to testify to exactly what’s in your report… would that really be the truth?

And the whole truth, so help you God?
 

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Comments (2) Read through and enter the discussion with the form at the end
DA Confidential - March 1, 2010 6:33 AM

I'm writing this early in the morning after a horrific night's sleep, so forgive my no-doubt faulty logic... but I would suggest the tenor of your wonderfully written post is precisely why police officer's need to write their reports with an eye on the defense lawyer.
You know I respect what you all do for a living greatly, but the fact is you aren't interested in the truth, you questioning is designed to bring out the whole truth, never was, never will be.
I would suggest that the advice given is to remember that, and so NOT to leave out mitigating stuff, to ensure there are no contradictions in the report. You have spun it to mean that cops might leave out exonerating info but I don't see that being suggested.
And, perhaps ironically in our adversarial system, the one thing you and I both want to see is a carefully, fully-informative police report.
Talking of reports, you still owe me some questions and answers, Mr. Spencer... and I want nothing but the truth from you!

Sarah - March 26, 2010 12:20 AM

As a young single mom who was set up by vice sting in austin with drugs I pray someday someone will see the truth in what austin calls TWIN towers I call it corruption APD undercover VICE ia a failure I was set up by a cop and now have a record for some BS I NEVER did I lost a year of my life and struggle with jobs because of one BAD COP and NO VIDEO?? NO AUDIO??? I wish I had had money for a lawyer before some judge playing god took my life FOR NO REASON!!!!

And what’s up with “wanting a conviction”? Afraid that a Not Guilty verdict is an attack on your policing ability?

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