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