Photo credit: Cpl. Grant Miller
Photo credit: Cpl. Grant Miller
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.
When you feel defensive, you act defensive. If you don't believe that, you're only fooling yourself. You won't fool the jury.
What kind of people act defensive? Guilty people with something to hide. That's what the jury sees when you look at the prosecutor and want her to object. If the prosecutor follows your cue, she communicates to the jury that she's also concerned about the defense attorney's line of questioning and doesn't want the jury to hear it. None of this helps an officer's credibility.
BOTTOM LINE – Only you can win your credibility in court with a judge or jury. The prosecutor can't help you in that regard. If she tries, she'll only make things worse.
This is not to say a prosecutor should never object when an officer is being cross examined. As a prosecutor, I did countless times, but not when an officer wanted me to. I made it a point not to look at my law enforcement witnesses on the stand. Instead, I looked at the jury.
If an officer was losing his credibility, I couldn't save it. But if the officer was winning his credibility confrontation with the defense attorney, a beautiful thing happened. The jurors or judge looked at me to signal they'd had enough of the defense attorney's badgering this officer with irrelevant questions he'd already answered. Then, I would rise and say, "Your Honor, at this point I have to object - asked and answered (or "cumulative" or "calls for speculation" or "relevance"). And the judge or jury would look at me as if to say, "It's about time you objected."
The look that launches a thousand questions.
When officers want a prosecutor to object, what do they do? They look at her.
Don't ever look at the prosecutor when you're on cross examination. It's fuel for the defense. It goes like this:
Q: Officer, did you just look at the prosecutor?
You've got one answer here - the truth. Anything else and jurors know you're not being honest. If you'll fudge on something like this, who knows what else you might lie about. At least that will be the defense argument.
Again, the only answer is the truth, which isn't a winner:
A: Because I wanted her to object.
Any answer just opens you up for more cross examination.
A: Because this isn't relevant.
Q: Isn't that the judge's call?
Q: But you'd rather decide what's relevant and the jury gets to hear and what they don't get to hear, wouldn't you?
Q: But our system of justice doesn't work that way, does it?
Q: You just wish it would, don't you?
Q: Then why are you signaling the prosecutor to object?
Q: You didn't signal me to object to any of the prosecutor's questions, did you?
Q: That's because you already knew those questions and your answers, correct?
Q: Officer, if you're just here to tell the truth, what do you care what questions I ask?
This questioning is permissible because it arguably goes to the officer's bias and how and what she testified to, or left out.
Even if the defense attorney doesn't ask the officer about looking at the prosecutor, jurors notice it. When surveyed about what behaviors on the stand weaken a witness' credibility, jurors list "looks to attorney for help." [For more behaviors that weaken and enhance witness credibility, see the link below by Trial Behavior Consulting.]
Mary Louise Gilman, editor of the National Shorthand Reporter, has filled two books with courtroom bloopers. Here's one for which you have every right to expect an objection.
Q: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?
Opposing Counsel: That question should be taken out and shot.