Culture of “Testilying”
Some 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.
Basic Strategy for Suppression Hearings
To win a 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.
Excerpted from the free eGuide Cross-Examination of Arresting Officer, by Kevin J. Mahoney. Download the full eGuide for 15 sample cross-examinations and dozens of tips to help you overcome an over-zealous police officer’s illegally obtained evidence.
Kevin J. Mahoney, a criminal defense attorney with over 20 years of trial experience, is also the author of Relentless Criminal Cross-Examination. The practical guide offers from-the-trenches strategies, tips, and advice for handling every kind of cross-examination – whether the witness is a police officer, accomplice, or alleged victim.