D.C. criminal defense attorney

Police officers are not neutral and disinterested witnesses

Jamison KoehlerTrial Advocacy

Officer Brittany Henkelman* is the government’s key witness against my client.  I know the officer.  Because she serves as the undercover decoy in prostitution solicitation stings, I have cross-examined her before.

My client in this case is charged with simple assault.  Two women were involved in a fight.  The question at trial is who started it.  While testifying on direct examination, Officer Henkelman keeps referring to the woman who is not my client as the victim. This bothers me, even though this is a bench trial and we are not in front of a jury, so I gently prod her on cross to say “complainant” instead of “victim.”  

Officer Henkelman obliges once or twice.  Then she is back to “victim.”  I don’t know if this is habit or if she is being deliberately contrary but I decide to pursue this.  You understand, I tell her, that “complainant” is the term that is traditionally used in court.  Yes, she says.  And that is because “complainant” is a neutral term, as opposed to “victim.” Yes, she says. In this case, you are persisting with use of the term “victim.”  She quibbles with this but I cut her off:  You were not there at the time of the altercation, were you?  No, she concedes, I wasn’t.  So you don’t actually know who the aggressor was and who the victim was, right?  She agrees again.  But you have decided that you are going to make that determination today for the court?

This is as far as I get before the court loses patience and directs me to move on.  But I have made my point, even if I am the only one who really cares:  It bothers me that police officers are viewed as such neutral, objective, and disinterested witnesses.  Yes, it is true that they have no personal stake in the outcome of the case.  But they do have an interest in justifying their decision to arrest one person instead of another.  They also want to perform their jobs and please the prosecutor.  After all, the “often competitive enterprise of ferreting out crime,” as former Supreme Court Justice Robert H. Jackson once put it, is a key part of their job.  

It took a long time for me to figure out why even defense-friendly judges are so reluctant to question the credibility of police officers, no matter what provably false thing comes out of their mouths while testifying.  This is because the judges do not want to end an officer’s career.  After all, an officer who has been found incredible by one judge will have difficulty testifying in future cases.  And if you can’t testify in court, you are not much use to the prosecution.  Can you say “desk job”?

While I try to accept this reality when dealing with bench trials, jury trials are a completely different matter.  In this regard, I like to pursue two areas of cross-examination that are collateral to the actual charges.  

The first area has to do with the officer’s police report.  The officer prepares her report AFTER she has made the arrest.  This means she is seeking to justify a decision she has just made to arrest one person over another.  

Access to body worn camera footage has introduced a new wrinkle for the government in this regard.  The body worn cameras often capture the officers’ discussion of whether to arrest a person and, if so, on what charges.  Sometimes you can even hear the officer acting as your client’s advocate, arguing against his/her arrest. As one officer put it the other day: “If she was so scared of the guy, why did she follow him home?”  The same officer has had a complete change of mind by the time she fills out her report.

The other area has to do with the officer’s training.  Officers receive extensive training on how to testify in court.  In DUI cases, for example, almost a third of the officer’s training manual on the standardized field sobriety tests is devoted to testimony.  The officer can agree with you on this. Or you can impeach her with the manual.  Either way you win.  And you can be sure that the purpose of the officer’s training is not to secure an acquittal for the defendant.  

*Not her true name