Cross-examining a police officer: Give me that probable cause thing one more time
December 16, 2011
For Tip 7 on how to write realistic courtroom scenes, we have one of the most fun settings in any criminal case: the cross-X of a law enforcement officer.
We all know that most men and women in uniform go into criminal justice for the right reasons. They want to help make the world safe for law-abiding citizens like you and me.
But, they also want to win the fight, the fight between them and the criminal defense attorneys who represent scumbags who surely deserve to go to the penitentiary. It’s Alabama and Auburn at the Iron Bowl, and don ‘t you forget it. Bending the rules a little to get a good result is just another day at the courthouse, right?
First, a word about cross-examination in general. Cross-X occurs when the attorney questions a hostile witness. What makes him “hostile” is that he is on the other side of the case. Some of the best hostile witnesses are the ones who come across as wise old statesmen, the ones who never lose their cool and kill the questioning attorney (and his client) with kindness.
Remember,too, that police officers receive training on how to testify. They know the tricks, and they know how to guard against most attacks. If the ADA has done her job well, she has prepped her witness at great length, shot hard questions at him and strategized with the witness about the best way for him to handle any significant problems with the case.
During cross-X, the attorney can and should use “leading questions,” questions that contain the answers in the queries themselves. A typical leading question is something like: “In fact, you never graduated from the police academy, did you, Officer Kelly?” ( Of course, the defense attorney better know the answer to a question like that before he poses it.)
In my view, the most powerful law enforcement witness is a seasoned pro who will give the defense obvious things, but stand his ground on the things that matter. For instance:
“You didn’t preserve the broken glass from the crime scene, did you, officer?” the defense attorney asked.
“No, I sure didn’t. It was raining on the interstate and traffic was stacked up for miles. I was trying to get off that roadway before some other jackass like your client came along drunk and ran over me or one of the other officers under my command.”
Most of that reply is subject to an objection, but once he has said it, he has scored a lot of points with the jury.
On the other hand, the worst hostile witness is the one who fights with the defense attorney about everything and won’t give even obvious answers. Such as:
“You were driving a white Crown Vic that day weren’t you, officer?”
“I don’t know. I’d have to check my report before I could answer that,” the policeman said.
“Well, every police car in town is a white Crown Vic, isn’t it?” The defense attorney pressed him.
“Maybe, I don’t know for sure. I’m color blind.”
“You have a piece of paper in front of you, don’t you?”
The officer looked at the paper and nodded.
“It’s white, isn’t it?”
“It’s what I’d call white, but it may be blue for all I know,” the officer said.
A member of the jury laughed out loud, then covered her mouth.
And so on. The point here is that the issue of what color the police car was doesn’t really matter. What matters is that the defense attorney has shown that the witness isn’t forthcoming. If he is is going to be that difficult about something that doesn’t matter, he will probably lie when it comes down to the important testimony.
OK, so here’s the assignment. Write a scene where the defense attorney catches a pompous police officer in a lie on the witness stand. Now, write one where the defense attorney overplays his hand, goes in for the kill and realizes too late that he is the one with the wrong facts. Have the police officer deflate his balloon with one swift thrust of the knife.