More on Winning Courtroom Confrontations

"I have noticed that nothing I never said ever did me any harm."

Impeachment by Omission

Defense attorneys know that if they can get a judge or jury to doubt a police officer, it can cause them to doubt the entire case. That's why they attack you more ferociously and often than other witnesses. One of the ways they do this is by trying to impeach your credibility with some fact you testified to at trial but omitted from your police report or in your prior testimony, e.g., in a search warrant proceeding, at grand jury, in a deposition, or a suppression hearing.

Let's look at an example.

You get a call from Rafael Alujas, an acquaintance of Varas. Alujas tells you that Varas is going to Ginard's home to pick up some cocaine. You and a DEA Special Agent set up surveillance. Soon, you see Varas drive up to Ginard's house, go inside for a few minutes, and come out carrying a brown shopping bag. Varas gets in his car. After he drives about 100 yards, you and the Agent stop him. You both identify yourselves and observe the bag in the middle of the floorboard within arm's reach of Varas' right leg. You ask his permission to search the car and he says, "No problem." You ask him what's in the bag and he doesn't respond. Under crumpled floral paper at the top of the bag, you find a brick of cocaine. Ginard's print is lifted from the brick, but none matching Varas. Both men are arrested.

At trial, Varas testifies he didn't know the bag contained cocaine. He had agreed to pick up what he thought was a power drill at the request of Alujas - a mutual friend of his and Ginard's. The defense theory is that Alujas set Varas up to get a break in his own pending criminal case in exchange for providing information about the "criminal wrongdoing of other persons." Alujas gets 3 of the 4 counts against him dismissed. The only information he provided the government was the tip against Varas.

You testify at trial also. You state on direct examination that when Varas was asked whether his car could be searched he appeared nervous and he appeared more nervous when asked about the bag. [See the link below for Bullet Proof Your Credibility in Court and read why you should NOT put "appeared nervous" in your police report.] You did not mention Varas' nervousness in your report, at your pre-trial deposition or when you testified at the suppression hearing the day before trial.

The defense will cross examine you something like this:

Officer, you prepared a police report in this matter, correct?

How long after you observed Mr. Varas and arrested him was it before you wrote your report?

You're specially trained in how to write police reports, aren't you officer?

That training begins in the Academy?

It continues through your field training?

And it continues on the job?

You know your reports will be reviewed and signed off by a supervisor?

You're specially trained and take care to write reports that are thorough, correct?

And a thorough report includes ALL the relevant facts, doesn't it?

You rely on your police report to refresh your recollection before testifying, don't you?

Why? [Because a significant amount of time will have passed and you can't be expected to recall the details of each encounter without reviewing your report.]

You testified when the prosecutor was asking the questions that Mr. Varas appeared nervous, correct?

Show us where it says that in your report.

It's not there, is it officer?

Show us where you testified to that at your pre-trial deposition or the suppression hearing in court just yesterday?

You didn't mention it then either, did you?

Yet now, 6 months after the event you're testifying for the first time to this additional detail?

How many people have you observed and approached on the job in the last 6 months?

You know the government has to prove beyond a reasonable doubt that Mr. Varas KNEW there was cocaine in the bag, don't you officer?

And you met with the prosecutor to go over your testimony in preparation for this trial, didn't you?

When?

Was it in the meeting with the prosecutor that you first recalled this EXTRA detail about Mr. Varas' behavior?

Do you think your memory was fresher when you wrote your report just a short while after you made arrested Mr. Varas or 6 months and countless other people later?

Now what?

This is a real case - Varas v. State (3rd Dis. Ct. of App, Florida, 12/05/01) - except the prosecution objected to the officer being cross examined about the omissions from his report and prior testimony and the trial court sustained the objection on the grounds that it did not relate to a material, significant fact that would have naturally been mentioned, rather than a mere detail. Good for us, right? Wrong.

The defendant was convicted after the prosecution argued his nervousness proved he knew what was in the bag. But that's good, right? Wrong.

The defendant appealed, the case was reversed, and the defendant was given a new trial on this issue. What happened then? Who knows? I couldn't find another reported opinion in the case after that. But we don't have enough resources to try all the cases we should, let alone try them twice.

And what do you think courts are going to do after the Varas trial court got reversed for not allowing the officer to be cross examined about omissions from his report or prior testimony? Right. They're likely to allow cross examination on such omissions whether they're important facts or not because they can't get reversed for that.

How do you win an impeachment by omission?

Don't try not to omit anything. It's impossible. And no one will read a report brought to them on a dolly. Furthermore, long, overly detailed reports risk another defense tactic - impeachment by contradiction (but that's another story). If the judge allows you to be cross examined on an unimportant fact you testified to (like the color of the car the defendant fled the scene in) - look for an opportunity to admit you're human and left that out of your report. Admitting you're human and that you didn't include every single unimportant thing you saw and heard during the entire course of the investigation will NOT hurt your credibility with a judge or jury.

To make sure you don't omit an important fact from your report or pre-trial testimony - a fact you will assuredly be testifying to at trial and the prosecution will be relying on - ask yourself the following questions:

  • What are the elements of the offense that you must prove?
  • What facts prove each of these elements?
  • What defense will likely be raised?
  • What facts disprove this defense?

It's quality, not quantity.

Josh Billings, a 19th century American Humorist in the mold of Mark Twain said,

"There's a great power in words, if you don't hitch too many of them together."


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