Hey Prosecutor, How About Objecting?!

Ever experienced a grueling cross examination and wondered why the prosecutor didn’t object? She may be ignoring you intentionally.

Whose side is the prosecutor on?

An attorney's duty is to represent her client's interests. For a criminal defense attorney, this may not be easy but it is simple. The client is the defendant. With rare exceptions, the defendant wants to get off.

The prosecutor represents the government - of the people, by the people and for the people. This includes the victim, police, the judge, jurors, witnesses, the defendant, co-defendants - everybody. This makes for a complicated client with conflicting interests. Recognizing this, the Supreme Court in Berger v. U.S., 295 U.S.78, 88 (1935) said,

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar sense the servant of the law [.]

The prosecutor is not on the side of the police - or the victims, or any other particular persons. The prosecutor's job is to serve the law.

"Objection, Your Honor!"

When an attorney objects, she must give a legal ground. When officers in courtroom testimony training suggest that the prosecutor should object to a cross examination I am subjecting one of their own to, I ask them, "On what grounds?"

"Relevance!" "Asked and answered!" "Badgering the witness!"

There are two reasons these objections are seldom effective. One is legal. The other is tactical.

As a legal matter, most judges allow wide latitude on cross examination. They tend to allow even wider latitude when defense attorneys are cross examining officers, crime lab personnel, or other professionals who regularly testify for the prosecution. Judges figure testifying comes with the job for these witnesses. They are more experienced and prepared to be cross examined vigorously than lay witnesses.

Relevance. Just about anything an officer thought, felt, saw or heard during the investigation is arguably relevant for initial questioning because it might:

  • Have influenced her investigation - what she did or didn't do, or
  • Go to the issue of whether she was or is biased.

Asked and answered may work, but only if the officer hasn't changed any part of his answer or added any additional information. If he has, the defense attorney may continue to question the officer about the change or the added information.

Badgering the witness may work with civilian witnesses but it's a loser when a police officer is testifying. Officers are authorized to use ASP batons, OC, Tasers, handcuffs and guns against people. If the prosecutor objects to cross examination of an officer on the grounds of badgering the witness, expect the following defense closing argument,

Ladies and Gentlemen of the jury, you'll recall the prosecutor objecting to my questions for Officer Jones. Remember her claiming I was "badgering the witness?" I apologize if I was too enthusiastic. I have Mr. Smith's liberty and livelihood weighing on my shoulders and I take that very seriously.

But you have to wonder what the prosecutor and Officer Jones were afraid of. A little badgering? Or is it my questions, which unlike the prosecutor's, Officer Jones didn't get to rehearse answers to before trial. And it's also got to make you wonder what Officer Jones does on the street when he feels like he's being badgered and there's no prosecutor to object.

This brings us to the tactical reasons a prosecutor may chose NOT to object when you are being cross examined, even if she has a legal basis.

Only YOU can win your cross examination.

In a previous article we discussed what the "win" for a testifying officer is - for the jury to find her credible. Credibility is the degree to which the jury believes a witness.

Officers most often want prosecutors to object when they feel attacked and defensive - not when they feel calm and confident.

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