U.S. Capitol Building

“Don’t Editorialize”

Jamison KoehlerCriminal Procedure, Humor, Trial Advocacy

Many police officers have a tendency to editorialize on the witness stand.

It is not that the driver reached for the glove compartment after being pulled over so that he could have his license and registration ready for the officer’s inspection. It is that the “suspect” was making “furtive movements” upon the officer’s approach.

It is not that the police officer, upon entering the home, could see the item sitting on the kitchen table. It is that the “contraband” was in “plain view.”

And my favorite, something I have now heard multiple times, it is not that the person blurted something out. It is that he made an “excited utterance.”

The officer who uses such language tells you a lot about himself.  First, he is letting you know that he is relatively unsophisticated. Second, he is signaling to the court that he is invested in the outcome of the proceeding.  Finally, he is demonstrating through his choice of words that he would be willing to shade his testimony, if need be, in order to achieve that outcome.

The government witness who continues to give me the most heartburn is the straight-talking, “just the facts” police officer who leaves legal conclusions to the court.  As my grandmother often said, sometimes you can be too clever by half.