Here's the facts
The defendant drove drunk and caused a crash resulting in one fatality and two seriously injured persons. You and Officer Ames arrive on the scene in separate patrol cars. The defendant flees in his car.
You remain at the scene. Officer Ames pursues the fleeing car and, without losing sight of it, stops it and arrests the defendant. The defendant admits to driving the car during the crash and damage to his car matches the wreck.
In her report, Officer Ames describes the car that fled as a green, Ford Escort. You describe it in your report as a blue, Chevy Nova.
The defendant is on trial for manslaughter and two first degree assaults. Officer Ames has just finished testifying. She described the fleeing car consistent with her report. Under direct examination by the prosecutor, you testify consistent with your report. You are now on cross examination by the defense.
Here's your cross examination
Q: Officer, you testified on direct examination that my client allegedly left the scene in a blue, Chevy Nova, correct?
A: Yes ma'am.
Q: Are you aware that Officer Ames testified under oath before this same jury that my client allegedly drove away in a green, Ford Escort?
A: No ma'am. [You would not know this because you do NOT discuss the testimony of other witnesses during the trial.]
Q: Okay. It will be the jury's recollection that governs. But assume for a moment the Sergeant did testify to that fact.
A: Yes ma'am.
Q: Which of you has provided false testimony about the car?
There are limited possible answers:
- Both.
- I don't know.
- I can only testify to what I saw.
- Officer Ames.
- I have.
- Neither.
It's unlikely you will testify that both you and Officer Ames testified falsely. At least, I've never gotten that answer during this scenario in courtroom testimony training nor heard it in court.
If you testify, "I don't know," or "I can only testify to what I saw," expect the following cross examination:
Q: You will agree the car couldn't be both a Ford and a Chevy?
A: Yes.
Q: It couldn't be both an Escort and a Nova?
A: Yes.
Q: It couldn't be both green and blue?
A: Yes.
Q: So, assuming even one of you provided true, accurate information about the car, one of you has to have provided false information, correct?
At this juncture, most officers concede the point. To which the defense attorney again asks,
Q: So, which one of you has testified falsely to this jury?
If you say something like, "Well, I'm testifying to what I saw so I'd have to say Officer Ames," expect the defense attorney to respond,
Q: That's right, Officer, because if someone got something wrong you're not going to say it's you, correct?”
If you say it was probably you, since Officer Ames followed the car and had it in sight longer, expect the next question,
Q: Is there any other false testimony you've given today under penalty of perjury that the jury wouldn't know about unless I uncovered it?
If you say you're not sure, expect:
Q: Is there any other testimony you've given under oath that you're not sure about but didn't bother to qualify when the prosecutor was asking the questions?
Embrace honest mistakes
The truthful answer to the above cross examination is, "Neither." Neither you nor Officer Ames testified falsely.
Clearly, one of you, possibly both of you, made a mistake, but to characterize that as testifying falsely suggests intentional dishonesty, which officers understandably resist. Then the defense attorney switches tactics and implies the officer would never be willing to admit it if she made a mistake.
Do NOT let the defense attorney mischaracterize what happened.
Q: Which of you has provided false testimony about the car?
A: Neither of us, ma'am.
Q: You will agree the car couldn't be both a Ford and a Chevy?
A: Yes, ma'am.
Q: It couldn't be both an Escort and a Nova?
A: That's right.
Q: It couldn't be both green and blue?
A: Yes.
Q: So, assuming even one of you provided true, accurate information about the car, one of you has to have provided false information, correct?
A: No, ma'am. Clearly one of us, maybe both of us made a mistake. But neither of us has testified "falsely."
Being reluctant to admit you made a mistake is understandable. It's not easy for any of us, let alone in a public courtroom.
However, what is our reaction when someone looks us in the eye and sincerely says, "I made a mistake"? We think that person is honest and humble. Those are good things for a jury to think about an officer. They strengthen the officer's credibility.
Officers are also concerned that if they admit to one mistake, they will face the defense attorney's question,
Q: Isn't it possible you made other mistakes, Officer?
But the answer to that is easy and also enhances the officer's credibility,
A: Yes, ma'am. Is there something in particular you're concerned I made a mistake about?
What do you think will be the defense attorney's response? Likely he will be left flat-footed because, if there was another mistake, you can be sure he would have already asked you about it. And the jury sees an officer who is ready to admit any mistakes brought to his attention and who is concerned about any errors he may not be aware of. All of which equals more credibility.
Embrace contradictions in testimony
Many officers and prosecutors worry needlessly about inconsistencies in officers' police reports and in subsequent trial testimony.
The question is whether the inconsistency raises a doubt about the defendant's guilt.
If it does, it will need to be resolved or we will not be going to trial. If it does not, it can actually enhance the credibility of both officers.
In the above scenario, the inconsistency raises no doubt about the defendant's guilt. This case won't be about an identity defense. There is no doubt the defendant was driving the car involved in the wreck. There will be other defenses - what and who caused the crash, whether the defendant was impaired - but not whether the person involved in the crash who left the scene is the one Officer Ames stopped.
So how can the contradiction in this case enhance the officers' credibility and strengthen the prosecutor's case?
- First, research into juror decision making shows that a witness will be seen as more credible if he testifies, in part, in a way that runs counter to his interest or the position of the side he is testifying for. [Witness Credibility: How Important Is It? Web link below.] Admitting mistakes is that kind of testimony.
- Second, what do you think a defense attorney would argue to a jury if all the police witnesses in a multiple car wreck with multiple victims, numerous witnesses and a confusing scene came into court and their testimony matched on every single detail? That's right - collusion.
I embraced such contradictions as a prosecutor. I knew if the officers addressed them in court as we have in this article, it would strengthen their credibility. And I looked forward to reminding the jury in closing argument,
Ladies and Gentleman, we now know what the defense is. It's that two officers described the dangerous instrument the defendant drove drunk, and killed and maimed innocent people with, differently. Except that's not a defense. And the fact that the two officers in this case honestly reported what they saw and heard and honestly testified about it, even if it didn't match exactly, shows they can be relied on to tell the truth.
