Let me tell you a story.
A police officer was testifying in a prosecution. He'd retired between the time he'd worked on the case and it went to trial.
When the retired officer was asked, "Do you swear to tell the truth, the whole truth, and nothing but the truth?" he paused with his right hand raised. Then he looked at the jury and solemnly answered, "No."
Unsure she'd heard correctly, the Judge asked, "Excuse me, officer, what did you say?" The officer replied, "I've never been allowed to tell the whole truth in a criminal case before, Your Honor. Have the rules changed?" [I wish I could credit this tale but I can't recall where I read or heard it.]
The rules haven't changed.
In fact, there are rules that prohibit you from telling the whole truth in a criminal trial, and, if the jury accidentally hears some inadmissible truth, you might cause a mistrial. [The exceptions to these rules are beyond the scope of this article.]
There's Federal Evidence Rule 404(b), adopted by most state courts, that prohibits the jury from hearing truthful evidence about the defendant's past bad conduct. The reasoning is that the jury is supposed to reach its verdict based on the evidence in this case and the defendant's bad past may prejudice a jury to convict based on that.
Accordingly, if the defendant who is on trial for robbery was out on parole for a previous robbery, the jury doesn't get to know that. If they accidentally hear it when an officer truthfully answers a question, expect an immediate motion for a mistrial. For example:
Counsel: Did the defendant say anything else to you as you placed him in the patrol car?
Officer: Yes, he did.
Counsel: What did he say?
Officer: He said, "Give me a break; I just got out on parole."
Regardless of which attorney asked the question, the defense attorney is going to move for a mistrial. The judge will excuse the jury and the prosecutor and defense attorney will argue the motion.
If the defense attorney asked the question, officers often suggest that the defense "opened the door." Many officers seem to think that "opening the door" means - if you ask the question, you're stuck with the answer. It doesn't.
"Opened the door" won't save the trial.
The "opening the door" doctrine is an effort by courts to prevent one party from gaining an unfair advantage by presenting evidence that, without being placed in context, creates an incorrect or misleading impression. Let's say the defense attorney knows from your report that you searched the defendant's car for a weapon because dispatch advised you that someone scanning the police frequency had called and said the driver of the car you were about to stop was known to keep a shotgun under his seat. If the defense attorney tries to suggest you searched the vehicle because of racial profiling, there's a good argument the door has been opened as to your real reason.
In our example, the defense attorney might not even know his client said, "Give me a break; I just got out on parole," if you didn't put it in your report. Even if you did, the defense attorney will argue she was asking about another statement she had a good faith basis to believe her client made that was exculpatory. (The defense attorney's "good faith basis" is her client's privileged statements to her.)
The defense will either get a mistrial now, or, if the trial judge refuses and the defendant is convicted, the case will be appealed. Then the prosecution will be arguing to some appellate judges that the defendant wasn't denied a fair trial by a jury who knew he was out on parole at the time he allegedly committed the offense he was on trial for. If the appellate judges disagree with the trial judge, the remedy is a new trial. So, we're re-trying the case two years after the first trial, or cutting the defendant a sweet heart deal because we've lost some of our witnesses. All because the jury heard some truthful information about the defendant.
Let's not forget the Exclusionary Rule.
The "Exclusionary Rule" was adopted by the Supreme Court in Weeks v. United States, 232 U.S. 383 (1914) and made binding on the states in Mapp v. Ohio, 367 U.S. 643 (1961). This rule provides that evidence seized in violation of a defendant's constitutional rights is inadmissible. The jury will never hear it, regardless of how relevant and truthful it is. Nor will they hear any truthful, relevant evidence the court decides is "fruit of the poisonous tree" of this original evidence. If we don't have enough other evidence, we won't even get to a jury.
But say some evidence is suppressed in a case and there's sufficient other evidence to go to trial. If the prosecutor didn't inform you of the court's decision in the motion to suppress - specifically what evidence was suppressed - and you innocently mention it in response to a question by either attorney - again, we may have a mistrial.
What can you do if you're asked about inadmissible truth?
If you're asked whether the defendant said anything else and all he said was, "Give me a break; I just got out on parole," and you try and hide that because you know it can cause a mistrial, how will you look to the jury? Like you're trying to hide the truth. Is this a good thing for a cop on the stand? No. Same thing if you're asked whether you seized any other items in a search of the defendant's apartment and you don't know if those items were suppressed.
So what can you do? Some officers respond, "Turn to the prosecutor." Okay, then what? If the prosecutor isn't already onboard - and she may well not be in time to prevent the jury from seeing you hiding the truth - you turning to the prosecutor for a cue will only fuel a defense argument that you are in cahoots with the prosecutor to give orchestrated testimony. In fact, jurors report that when a witness turns to "their" attorney for help it weakens the witness' credibility. [Trial Behavior Consulting, Inc., THE RECORDER, October 1997.]
So, what can you do?
Turn to the judge.
Okay, then what? This gets tricky. You don't want to say,
"Your Honor, I can't answer that because it's something really bad about the defendant," or
"Your Honor, I can't answer that because it's evidence the defense has succeeded in keeping from the jury."
Okay, maybe you do want to say that, but you won't - because that will invite a motion for mistrial and the Judge's ire for the rest of your career, and because, unlike the criminals, we don't try end runs around the rules.
You guys have come up with the best response in courtroom testimony training across the country. If any reader can improve upon it, please email me. Turn to the Judge and say,
"Your Honor, I cannot answer that without guidance from the court."Be prepared. The Judge may look to the prosecutor and, if there's no objection, order you to answer. Repeat the above. Then the Judge may get angry and say,
"Officer, do you understand that disobeying a direct order of the court is "contempt?" Now, answer the question."Then what? You repeat the above. Why? Because a Judge can cause a mistrial, too. If you answer and the jury hears the inadmissible evidence, the question isn't who caused the problem - the question is whether the defendant is deprived of a fair trial.
I promise, the Judge will send the jury out and ask why you risked being held in contempt before sending you to jail. For one thing, she's curious. She also has to make a record.
When you tell the Judge what your truthful answer was and that you feared it might not be admissible, two things will happen. First, you will have won your credibility with that Judge for the rest of your career. Second, the Judge will make a ruling and bring the jury back in. The jury expects the Judge to decide what they can and can't hear. They just don't want a cop deciding to hide something from them.
Conclusion
A criminal trial isn't about the whole truth. It's about the prosecution meeting its burden of proof based on the facts in that case. It's also about us following the rules. That's the difference between us and the bad guys - we follow the rules.
