Defense attorneys attack the credibility of officers like no other witness. That's because you’re unique. Jurors hold you to a higher standard than any other witness. If a defense attorney can raise a doubt about your credibility with just one juror, it may raise a doubt about the entire case.
What's the first thing a defense attorney is going to look at to try and discredit you? Your report. You must begin to prepare to win against this attack while you're writing your report. Put yourself in a Condition Red state of awareness. Imagine the case at trial with your credibility on the line in every word you write.
Nation-wide, officers say they know they should not include opinions in their reports. But statements like, "the suspect appeared nervous," "seemed defensive," "approached in a threatening manner," are common. They're free ammo for the defense attorney.
Here's a real scenario. In a DWI case the officer wrote in his report that the suspect "appeared nervous." He also wrote she had watery eyes, a slight odor of alcoholic beverage, and an occasional slight slurring of speech. She failed the Standard Field Sobriety Tests and blew a .12. Now the officer is on cross examination at trial.
Q: Officer, you wrote in your report my client, Mrs. Baxter, appeared nervous?
A: That's correct.
Q: You observed that early in your contact with Mrs. Baxter, didn't you?
A: Yes.
Q: How did you stop Mrs. Baxter?
A: [The officer is led to describe his marked car, flashing strobe lights, what he was wearing - uniform, badge, service weapon, magazines, ASP baton, OC spray, handcuffs.]
Q: Officer, can you think of any reason any citizen - like the ladies and gentlemen of the jury - might also appear nervous when stopped as you've described and approached by an officer dressed and armed as you were?
A: [Answers here vary. Mock jurors are emphatic in their response. If you say "No" or any variation - "Possibly," "I wouldn't want to speculate," you've lost credibility because they know they get nervous when they simply see your patrol car.]
Q: Now, Officer, different people appear different when they're, in fact, nervous, don't they?
A: [Answers vary: "I guess so." "I suppose so." "What do you mean?" Officers qualify their answers and don't want to commit until they see where "the defense is going." Mock jurors say this looks evasive.]
Q: Well, some people when they're nervous appear quiet and hesitant?
- Some get very talkative?
- Some shiver or tremble as if they're cold?
- Others sweat as if they're hot?
- Some blush?
- Some go pale?
Q: Fair to say there are almost as many different ways people appear nervous as there are people - given all the expressions and possible combinations?
A: Sure.
Q: You'd never met Mrs. Baxter before this incident, had you?
A: No.
Q: You have no idea how Mrs. Baxter appears when she is, in fact, nervous - do you?
A. No.
Q: You didn't ask her if she was nervous, did you?
A. No, I didn't.
Q. How long think that would have taken?
A. Not long.
Q: So your statement that Mrs. Baxter "appeared nervous" was just your opinion, wasn't it?
A: [You can try to evade and deny it was "opinion" but you won't get far. Fact is - it was your opinion.]
Q: And that opinion had no basis in any personal knowledge you had of Mrs. Baxter, did it?
A. No, it didn't.
Q: Officer, I'm curious, maybe the jury is also, why did you include in your official report your baseless opinion that Mrs. Baxter appeared nervous?
A: [Answer, "I don't know," and the defense attorney will ask what other baseless opinions you put in your report for no reason you can think of. Answer, "That's how I was trained," and the attorney will respond, "You were trained to include baseless opinions in your reports?" Try and defend yourself by saying it wasn't "baseless" - it was based on your observations - and the defense attorney will point out you didn't bother including your observations in your report and you didn't bother to get a basis by simply asking Mrs. Baxter. This leads to more time being spent on an issue that distracts the jury from the evidence of Mrs. Baxter's intoxication.]
Q: Officer, you include things in your report you think are relevant to whether a crime has been committed and who committed it, correct?
A: Yes.
Q: And you leave things out that you think are not relevant to that?
A: Yes.
Q: So you included your opinion Mrs. Baxter "appeared nervous" because you thought it was relevant to whether she had committed a crime?
A: [If you answer, "No," we're right back to, "Then why did you include your baseless opinion." If you answer, "I suppose so," expect, "Don't suppose officer. The jury is entitled to the accurate truth from you, not speculations." If you answer, "Yes," we're at least on to the next question without wasting more time.]
Q: How was your baseless opinion that Mrs. Baxter appeared nervous relevant to whether she’d committed a crime?
A: [Fill in with the answer of your choice. There's no good one.]
Q: Isn't it true that your opinion Mrs. Baxter appeared nervous, in your mind, was an indicator of guilt?
A: [Pick your poison.]
Q: Officer, do you think your opinion that Mrs. Baxter "appeared nervous," an indication of guilt in your mind important enough to be in your official report - and which you formed early on in your contact with her - could have effected, however slight, the rest of your interaction with her?
A: [Deny it and the attorney will turn to the jury with eye brows raised. Admit it and it's a plus in the defense column as well.]
Then, the coup de grace:
Q: Officer, are you nervous?
A: [The jury will already know the answer to this. See my previous article, linked below, and Ralph Waldo Emerson's "What you are thunders so loud I cannot hear what you say to the contrary."]
Q: So if the jury does their job today, like you did your job with Mrs. Baxter, they should form an opinion you're guilty of something?
Say, "No," and the defense will respond, "That's right, Officer, you don't want the same rules applied to you, do you?" Say "yes," well, enough said.
What are the lessons here? First, be on Red Condition alert for a courtroom confrontation when you're writing your report. Think this example is too nit picky? It was in a book written by a defense attorney for other defense attorneys on How to Defend Drunk Driving Cases.
If your observations are significant, report them,
"When I asked Mrs. Baxter if she'd been drinking, she looked away, her hand holding her license began to shake, her lips started to quiver and her watery, bloodshot eyes filled up and spilled over with tears."And so on. Let the jury form their own opinion about the defendant's guilt. Your opinion, however innocuous, will only be used to impeach you.
The second and even more important lesson is that if you mistakenly include an opinion in your report, admit it - sincerely and non-defensively.
Q: You didn't ask Mrs. Baxter if she was in fact nervous, did you? A: [Thoughtful pause, looks at Mrs. Baxter then back at the questioner and sincerely responds.] No, I didn't. I should have. And I could've asked if I was doing anything to make her more nervous than a stop usually does because I certainly didn't intend to. Q: [Stunned, flat-footed, defense attorney recovers.] So your statement Mrs. Baxter appeared nervous was just your opinion, wasn't it? A: [Again thoughtful.] I guess you're right. I didn't think of it like that at the time but I should've just stuck to what I observed that made me think Mrs. Baxter was more nervous than most folks during a routine traffic stop. Q: [Defense attorney is now shooting blanks.] That's right officer, you should have! A: Yes ma'am, I should have.
This cross examination, like many, has nothing to do with the evidence. Its purpose is to make the officer feel defensive. If the officer allows that, he will act defensive. What kind of people act defensive? Guilty people. That's what the jury will see. Don't let yourself be put on trial. When someone looks us in the eye and sincerely says, "I made a mistake," our reaction is they're honest, we can trust them to level with us. That message to a jury will have you win your credibility confrontation every time.
