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Cross-Examining the Arresting Officer This 57-page chapter from Kevin J. Mahoney's Relentless Criminal Cross-Examination provides strategies, angles of attack, and pattern cross-examinations for:
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Cross-Examination of
Arresting Officer Principles, custody, motor vehicle stops
and searches, drug cases, search warrants, and searches incident to arrests By Kevin J. Mahoney Excerpted from
Relentless Criminal Cross-Examination
I. Governing Principles §3:01 All-Too-Common Fact Pattern §3:02 Brazen Police Officers and the
Forfeiture of Freedom §3:03 Judge Is Likely Just Another
Frightened Citizen §3:04 Culture of Testilying §3:05 Basic Strategy for Suppression
Hearings §3:06 Sample Open-Ended
Cross-Examination [§§3:07-3:09 Reserved] II. Was Defendant in Custody? A. Meaning of “In Custody” §3:10 Prosecutor’s Direct
Examination §3:11 Defense Cross-Examination B. Client Free to Leave House Surrounded by
Armed Police §3:12 Sample Fact Pattern §3:13 Strategy §3:14 Cross-Examination C. Suspect Voluntarily Accompanied Police to
Station §3:15 Key Facts §3:16 Strategy §3:17 Angles of Attack §3:18 Cross-Examination [§§3:19-3:24 Reserved] III. Motor Vehicle Stops and Searches A. Motor Vehicle Stops 1. Suspected Drug Deal in Vehicle §3:25 Common Fact Pattern §3:26 Prosecutor’s Direct
Examination of Officer §3:27 Defense Cross-Examination 2. Casing the Neighborhood §3:28 Common Fact Pattern §3:29 Strategy §3:30 Angles of Attack §3:31 Cross-Examination 3. Suspected Stolen Car §3:32 Strategy §3:33 Sample Fact Pattern §3:34 Angles of Attack §3:35 Cross-Examination [§§3:36-3:39 Reserved] B. Motor Vehicle Searches 1. Based on Odor of Marijuana §3:40 Strategy §3:41 Angles of Attack §3:42 Cross-Examination 2. Search of Trunk Based on Odor of Marijuana §3:43 Common Fact Pattern §3:44 Cross-Examination 3. Search Based on Strong Odor of Marijuana, But
Suspect Not High §3:45 Strategy §3:46 Angles of Attack §3:47 Cross-Examination 4. Search Based on Furtive Movements §3:48 Strategy §3:49 Angles of Attack §3:50 Cross-Examination [§§3:51-3:54 Reserved] IV. Drug Cases §3:55 Strategy: Hand-to-Hand Drug
Deal §3:56 Angles of Attack §3:57 Cross-Examination [§§3:58-3:59 Reserved] V. Search Warrants A. Failure to Include Evidence §3:60 Strategy §3:61 Cross-Examination B. Confidential Informants §3:62 Strategy §3:63 Angles of Attack §3:64 Cross-Examination
[§§3:65-3:69 Reserved] VI. Search Incident to Arrest §3:70 Strategy §3:71 Angles of Attack §3:72 Cross-Examination I. Governing Principles §3:01 All-Too-Common
Fact Pattern The officer spies a teenage male driving a car down a leafy, upscale street. The male has done nothing wrong, committed no traffic offense, but he looks out of place—which is more than enough justification to pull him over. When the officer approaches the driver’s side door, he assesses the male. If everything is in order and the driver is dutifully submissive, the officer will let him drive on. If anything is amiss, or if the driver cops an attitude, that is grounds for a full-blown search of the car and its driver. Deciding that the driver is insufficiently grateful for the intrusion, the officer orders him from the car and, with the help of back-up, begins tearing apart the car’s interior. Unearthing a small bag of marijuana from beneath the passenger seat, the officer places handcuffs on the male and questions him about the grass. Figuring the officer has him, the male admits the marijuana belongs to him. Marching his arrestee toward his cruiser, the officer gives no thought to the constitutionality of the search. Later, he’ll draft his police report, knowing just enough law to construct a constitutionally valid search out of whole cloth. The kid, the officer supposes, will likely accept a tidy plea anyway. If the kid rejects a plea, the officer figures he can just take the stand and lie. The prosecutor will believe anything the officer tells him, and who is the judge going to believe—an 18-year-old kid who’s broken the law or an upstanding officer in a pressed uniform? Some months later, the officer takes the stand. The lies roll off his tongue. That he’s committing perjury troubles him not at all; the judge has no business interfering with police matters. §3:02 Brazen Police Officers and
the Forfeiture of Freedom If Tyranny and Oppression come to this land, it will be
in the guise of fighting a foreign enemy. —James Madison In my experience, brazen police officers so frequently abuse their power that no one—no motorist, no juvenile, no adult, no professional of any kind—could make a compelling argument that constitutional rights afford any real protection from the state. How is it that a nation that prides itself on freedom would allow thugs with badges to behave like the KGB? We are no longer the beneficiaries of the proud, brave and intellectually gifted Founding Fathers. We are no longer free men and women. Today, we are as free as penned sheep; free to crowd one another, to eat the garbage emptied into the trough, and to mindlessly bleat until the hour of reckoning. Many would make the argument that the government has taken our rights from us. Others hold that only after a death struggle would we allow the government to tear our rights away from us as we clenched them to our bosom. For the government, a struggle that might have proved difficult or might have been lost was, indeed, unnecessary. The authorities needed to do no more than whisper, “Boo!” and we surrendered our rights. Like a schoolboy presenting his teacher with a shiny apple, we have scrubbed our faces clean, arranged our smiles, and, reaching way up, bestowed our precious rights on the government. We are no longer fearless patriots, but well-behaved simpletons eager to please the master who has assured us that these rights make it more difficult to protect us. They appeal to us, “How can we possibly keep you safe and free if our efforts are forever being thwarted by antiquated, counterproductive rules? You do want to remain free, don’t you?” “Oh, yes,” we reply, “we love freedom; do whatever is needed to keep us free.” We are bleating sheep. But your client, fresh from his arrest, bewildered and terrified asks, “Where have my rights gone?” It is only then, when he is in the custody or crosshairs of law enforcement, that he appreciates the magnitude and awesome power of government. In my experience, by the time a client has reached a lawyer, the police likely have violated his constitutional rights. Most lawyers think of constitutional rights as something they assert on their client’s behalf in a courtroom. While the court might provide a remedy, these rights were designed to keep us free of government interference and intrusions as we go about our business, on the street and in our homes. Remarkably, although the Framers took great care to detail our rights, they included no remedy for the breach of these protections. The Framers included remedies for disgraced presidents, unethical congressmen, and dishonest judges, but no remedy for the violation of a citizen’s rights. These ideals—so novel, so uplifting, and so inspiring—were designed to symbolize, as much as safeguard, the dignity of the individual citizen. Having cherished, considered, and reserved these rights, this dignity, to their fellow citizens in the document from which they would manage this fledgling nation, perhaps the Founding Fathers believed that the men and women who had fought the British would respect the ideals that drove them to the fight. Just maybe, they believed so highly in these rights that they did not believe they needed to include a remedy; that those charged with enforcing the law would, as fellow citizens, respect these rights. Perhaps the Framers were under no illusions about their fellow citizens and simply wanted to leave it the courts to fashion the appropriate remedy. Whatever their opinions of their fellow man, none could have anticipated the degree to which, today, the law enforcement of a democratic nation would come to view its citizens as enemy combatants. Law enforcement runs roughshod over our rights. Moronic television shows, celebrating the tough cop who punches a suspect in the head and remarks, “I just read you your rights,” encourage the abuse. Many, maybe most, police officers have nothing but derision for the rights of citizens they suspect of crimes. As instance after sickening instance of police brutality leads the evening news, one cannot help but conclude that the police administer “justice” before turning the suspect over to the system. At best, police officers reluctantly acknowledge our constitutional rights. Where Revolutionary-era Americans once defiantly shed blood to wrestle their God-given rights from the King, Americans today are a gutless lot. As citizens, obligated to each other, we expect little from the police and demand even less. We are intimidated, both by the police and the nameless, ever-present threats that surround us. If the police transgress upon our rights, only the bravest—or drunkest—will protest. And it’s getting worse; unnerved by criminals, terrorists, and assorted bogeymen, we have forfeited our rights. To the extent that we have given this a modicum of thought, we have mistakenly concluded that when times improve, these rights can be reclaimed as easily as they were discarded. As we have done away with these rights—this foolish excess in a time of danger—we have screamed ourselves hoarse for the three prongs of hard justice: infinite accountability, trials tipped in favor of the government, and penalties ever escalating in length and severity. §3:03 Judge Is Likely Just
Another Frightened Citizen Into this environment of suspicion, hatred, and fright wades defense counsel. To an audience of one, he must argue that the police are lying and are to be distrusted, and that to retroactively reinstate those rights, the evidence must be suppressed. Few judges are immune to the country’s determined shift to the right. They, too, are scared. For all their power, they are just as vulnerable as any other citizen when they walk the streets. In fact, many believe that their black robes place them at greater risk. They live in fear that some crazed criminal will waltz into the courtroom and shoot at them. The judges demand metal detectors, scanners, and additional court officers. They read the very newspapers that will praise them for their brand of hard justice and castigate them for their betrayal of the community-at-large in upholding some criminal’s half-baked right. They do not just live in this “betrayed” community, they depend on its police force for protection; judges call the police, not our clients, when they are under threat. §3:04 Culture of Testilying In my experience, most police officers will lie under oath in order to protect the fruits of legally questionable arrests or searches. To these officers, a “white” lie to prevent an “injustice”—the judge suppressing the evidence because of his interpretation of some vague constitutional precept—is morally acceptable. This lie includes fabricating the police report, lying to the prosecutor, lying to the grand jury, and lying to the trial jury. The lies sit easily upon these officers because the guilty receive the punishment they deserve. Defense counsel’s cross-examination at the hearing on a motion to suppress is part of the game. The officers are not so much lying, they reason, as matching wits against an adversary. Many police officers, but maybe not most, will exaggerate, bend, or reorder the facts, falsely attribute statements to the accused, or lie about what they observed in order to convict a person they believe to be guilty. Few officers will lie to convict a person they believe is innocent. (Of course, to the police, every innocent act points toward guilt.) How is it that the police, sworn to uphold the law,
would come to so regularly, so blithely commit the criminal act of perjury?
To understand the culture of testilying, consider the personality types
commonly attracted to law enforcement: 1) the emotionally immature who view
the world in black and white terms; 2) bullies attracted by the power; 3)
those looking for a decent job with benefits; and 4) those who want to serve
their fellow man. The officers who live in a black and white world would
consider allowing the criminal to get away with his crime worse than a white
lie to protect an arrest. To the bullies, lies are just another way to
demonstrate their power over their victims. To the guy who wanted only a
decent salary and benefits, lying is just part of the job. Those who wish to
serve their fellow man are, in my opinion, the least likely to commit
perjury. Police recruits are not taught to lie at the The real training is done off the official police
grid. More experienced officers teach the newly minted officers how “real”
police work is done, how order is maintained on the front lines and how to
keep the bad guys off the street. To the experienced officers, perjury is no
different from any other tool available to them—whether it be their firearm,
their cruiser, or their badge—to combat crime. While no one has admitted as
much, at least not to me, I’m convinced that before a hearing on a motion to
suppress on an important case with “problems,” the police witnesses meet to
map out their testimonies. PRACTICE POINT: Subpoena additional police witnesses. In a serious case, one in which you anticipate the direct
and cross-examination of the police witnesses produced by the prosecution
will consume multiple days, plan to subpoena additional police witnesses—but
do not disclose these witnesses to the prosecution until the prosecution’s
final witness takes the stand. This will prevent the police and, possibly,
the prosecution from including “your” witnesses in the pre-hearing meeting
where they will “discuss” the “facts.” These witnesses, usually regular
police officers, are not accomplished liars and, not knowing any better, may
contradict the prosecutor’s police witnesses. What have experienced police officers seen of society that impresses upon them to so prize the truth? Lying isn’t the exception, it’s the rule. From the president on down, it’s all spin, all the time. Officers are often on the receiving end of malicious, career-threatening lies. To extricate themselves from trouble, defendants manufacture outright lies against the officers who arrested them. Women who retreated to locked bathrooms, bruised and bloodied, to dial 911 and report their abusive husbands, later deny their husbands struck them and accuse the responding officers of brutality. Testilying is not excusable, but it is understandable. In my experience, most judges are, at best, indifferent to police perjury. So untroubled are some judges by obvious perjury that there seems to be an unspoken agreement: the cop pretends he is testifying truthfully, and the judge pretends he believes the testimony. Other judges, feeling a small tug to act conscientiously, will do their best to reconcile the irreconcilable. In the end, despite your winning issue and blistering cross-examination, the judge’s findings mirror the officers’ testimony, and he denies the motion. To reach such absurd factual conclusions, this robed jurist, like a starving man in some third world country, must have sifted through a pile of testimonial excrement to find something edible. A judge willing to pick through the excrement is green-lighting perjury. If testilying is, in the end, understandable, make it understandable to the judge and to the jury. For example, often a police officer will wear civilian
clothing to a jury trial, rather than his uniform. By civilian clothing, I
mean a pair of dress slacks, a shirt and tie, and a sports jacket. In Q: At that Clerk Magistrate’s Hearing you were dressed in your regular state trooper uniform? A: Yes, I was. Q: The blue-ish-grey uniform? A: Yes. Q: With the baggy, storm trooper-type pants? A: The regular issued uniform. Q: Knee-high black boots? A: Yes. Q: With the badge? A: Absolutely. Q: The State Police patch? A: Of course. Q: The thick, black belt? A: Yes. Q: With the handcuffs? A: Yes. Q: The places where you store additional ammunition? A: Yes. Q: And mace? A: Yes. Q: And the holster? A: Yes. Q: Your state issued handgun? A: I . . . yes. Q: The uniform of a State Police Trooper is militaristic looking? A: It’s the standard uniform, Mr. Mahoney. Q: It’s designed to intimidate? A: No. It’s designed so people respect us. Q: You mean obey you? A: Yes. Q: Because they fear you? A: Because we’re uniformed officers.
TECHNIQUE TIP: Call attention to the fact that the uniform makes a
deliberate statement. It’s not enough simply to ask the officer if he wore his
uniform at other court appearances. Use your questions to detail just how
intimidating the uniform is and that it is designed to intimidate.
Q: And then we had a motion, a hearing on a motion in the other courtroom down the hall back in May, didn’t we? A: Yes, we did. Q: And you wore your uniform that day as well, didn’t you? A: Yes, I did. Q: And then we had another hearing date and you wore your uniform on that date as well? A: Yes. Q: But today you are dressed in civilian clothing? A: Yes, I am. Q: You have learned that it is better to dress in civilian clothing when you are to testify before a jury? It’s a little bit less intimidating? A: I do it out of respect for the court, Mr. Mahoney; I don’t do it for the jury. I mean, I do it for the — not to be less intimidating. Q: You do it for the court? A: Absolutely. Q: But on the other occasions, you were present in court and dressed in your uniform? A: I was not in a trial and not before a jury. Q: But you were before the court? A: Yes, I was. Q: The difference between those other court appearances and this court appearance is the presence of a jury? A: That’s one difference. Q: At the police academy, they instruct you to wear civilian clothing when testifying before a jury? A: I don’t recall. Q: You wear civilian clothing because you hope the jury will relate better to you? A: No. I do it out of respect for the court. Q: Not to belabor this, but are you testifying that on those other occasions when you appeared in court wearing your uniform, you were displaying disrespect for the court? A: No. Not at all. Q: The only difference, really, is the presence of the jury? A: No.
PRACTICE POINT: I want the Trooper to disagree with me. The more he
disagrees, the more obviously it is true. I would be disappointed if he
agreed with me. But even if he agreed, he would be agreeing that he was
trying to manipulate the jury. He’s in a no-win situation.
Q: You wear civilian clothing because you want to leave a more friendly impression with this jury? A: No. No. Q: You’re not wearing handcuffs? A: No. Q: Your badge? A: No. Q: Your handgun? A: No. Q: Your mace? A: No. Q: A badge, handcuffs, a handgun and a canister of mace don’t exactly make you appear very personable, do they, Trooper? A: I’m not wearing them. Q: I understand. §3:05 Basic Strategy for
Suppression Hearings To win the motion to suppress, the issues must be
well-researched and well-articulated, and the cross-examination must be
first-rate. To the rare judge who refuses to turn a blind eye toward police
perjury, it may be sufficient to demonstrate, through cross-examination,
that the testimony is improbable. On the other hand, to wrest a
decision from a judge who habitually finds in favor of the prosecution, it
is not enough to discredit the lying officers; defense counsel must pull
favorable facts from witnesses, even police witnesses, who are either
uncomfortable committing perjury or too inexperienced to lie well. It is
these contradictions—these facts—that force a judge to grant your motion. In a large percentage of criminal
cases, there is something that defense counsel can move to suppress. For the
defense, the hearing on the motion offers twin opportunities: the
suppression of troubling evidence and invaluable pre-trial cross-examination
of the witnesses, particularly the police witnesses. In some cases,
particularly drug cases and cases in which the defendant has given a
detailed confession, the outcome of the motion to suppress is case
determinant—the accused walks free or is forced to plead out his case. In
other cases, where the evidence defense counsel seeks to suppress is not
very incriminating or the legal grounds for suppressing the evidence are not
very compelling, cross-examination should be used to unearth facts and
commit witnesses to their version of the facts. When the motion to suppress will determine the outcome
of the charges, focus your cross-examination exclusively on winning the
motion. When the hearing will be used primarily to explore the government’s
case, freely use the open-ended question. While it remains important to
shackle the witness to his testimony, it is equally important to elicit as
much information from the witness as possible; the leading question is
better at confining than freeing the witness to tell you all he knows. A
witness reluctant to disclose anything valuable to the defense will
interpret a leading question as narrowly as possible. The reluctant witness
takes the stand anticipating a struggle and leading questions. Treat him as
you would a witness you were deposing, instead of cross-examining. A series
of open-ended questions will surprise him and, hopefully, result in him
revealing information the prosecution had wanted to remain unknown. §3:06 Sample Open-Ended
Cross-Examination In a drunk-driving case, for example, you may decide to move
to suppress, based upon whatever legal theory, the client’s admission that
he had been drinking. Naturally, you want to know at the hearing, not at the
trial, everything the officer claims your client stated, so that you can
flawlessly execute your cross at trial. Q: Officer, you said Mr. McGowan admitted he had been drinking? A: That’s right. He said he had been to a wedding and had been drinking at the wedding. Q: What, exactly, did he say? A: As I stated, I asked... well, I noticed the odor of
alcohol and so I asked him if he’d been drinking. Mr. McGowan answered
“yes,” he’d been drinking at a wedding in Q: This was while he was seated in his car? A: Yes. Q: During the time that he’s seated in his car, did he make any other statements with regard to alcohol? A: Ah... ah, not that I remember. Q: Did you ask him how many drinks he’d had? A: I don’t believe so. Q: Did he tell you the number of drinks he had consumed? A: No, I don’t think so. Q: Did you ask him what he had been drinking? A: No. Wait, no I did. Q: What did you ask him? A: I asked him, well, I asked him if he’d been drinking beer or something stronger. Q: Why? A: Because I wasn’t sure. Q: Did he tell you what he was drinking? A: Yes. He said he’d been drinking beer. Q: Just beer? A: Yes. Q: Did you ask him when he had his last drink? A: No, I don’t think so. Q: Did he tell you when he had had his last drink? A: Not that I recall. Q: Did you ask him if he was intoxicated? A: Yes, I did ask him that. Q: What did he say? A: He said, “No.” Q: Did you ask any follow-up questions about being intoxicated? A: No. I don’t believe I did. Q: Have you told us everything you remember Mr. McGowan said about consuming alcohol? A: That’s everything I recall.
PRACTICE POINT: Open-ended questions may give defense some breathing
room at trial. Through a series of open-ended questions, defense counsel
has elicited from the officer that he failed to ask the defendant, and the
defendant never volunteered, how many drinks he had and when he drank his
first and last drink. That would be powerful evidence at trial, especially
if there is no breathalyzer result and the defendant’s performance on the
field sobriety tests isn’t too bad. Such openings allow the defense some
breathing room in explaining away a strong odor of alcohol (defendant
recently drank one beer), a moderate odor of alcohol (defendant hadn’t had a
drink in hours), etc.
[§§3:07–3:09 Reserved] II. Was Defendant in Custody? A. Meaning of “In Custody” In the movies or on television, the police give the suspect his Miranda Rights when they place him under arrest. In real life, the arrestee gets his rights at the station. According to Miranda v. Arizona, 384 U.S. 436 (1966), once the police have taken the suspect into custody, they are required to advise the suspect of his rights before they question him. In practice, questioning, in some form or another, almost always precedes the Miranda Rights. Despite being able to recite their rights from memory, most suspects answer questions, to their detriment. At many hearings, the pivotal issue is, “Was the defendant in custody when the police interrogated him?” See generally Form 3-A, Motion to Suppress Statements; Unlawful Detention. §3:10 Prosecutor’s Direct
Examination To the prosecutor, no interrogation is custodial. Surrounded by uniformed police officers, the accused was, naturally, free to walk away. If handcuffed, the defendant was simply being temporarily restrained (for his own good) while the police sorted things out. If escorted in a police cruiser to the station, the accused was simply cooperating, even if only moments before he had been in full flight from the police. An experienced prosecutor will identify every helpful fact that suggests the encounter was non-custodial, and twist the rest. On direct examination, the prosecutor will lead the officer through a series of easy questions: Q: Officer, why did you approach the defendant? A: Well, I thought he might have seen something. Q: When you approached him, did you have your gun out? A: No, of course, not. Q: Did you ask him any questions? A: I asked him what he was doing in the area. Q: What did he say? A: He said he was just walking home from work. Q: What happened next? A: I asked him where he lived. Q: Did he answer you? A: Yes. He said he lived at Q: Did that have any significance to you? A: Yes. We were on Q: So, what did you do? A: I asked, “Isn’t 101 back that way?” Q: Did he answer you? A: He said he was going to get a Coke at the convenience store at the corner. Q: Was there anything you noticed about his person? A: Yes. He was very nervous. Almost twitchy. He was speaking rapidly. He kept walking away from me... Q: Thank you, Officer. What else did he say? A: He said he was running late and had to hurry home. Q: Did you ask him anything further? A: Yes. I asked him if he was in such a hurry, why didn’t he go directly home? Q: What did he reply, if anything? A: He said he was thirsty. Q: What happened next? A: I finally asked him, ‘Do you know anything about the liquor store hold-up?’ Q: What did he say? A: He said “no” and he was coming from work. Q: What happened next? A: I said, “Where do you work?” Q: And what did he say? A: He was unable to say where he worked. He said he just wanted to go home and did not know why I was bothering him. Q: What did you do? Was he under arrest at this point? A: Absolutely not. Q: Was he in custody? A: No. Q: Was he free to leave? A: He was, yes. Q: What did you do next? A: I asked him if he’d mind waiting while I got the liquor store owner to come down and ask him a few questions? Q: Did he respond to that question? A: Yes. He said, “I robbed the store. I’m sorry.” §3:11 Defense Cross-Examination The prosecutor, as prosecutors do, left out some very important facts, which demonstrate that the encounter was far more hostile and accusatory than the officer would have the judge believe. Underscore these facts: (continued in pamphlet)
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