Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.
In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.
By Steve Cobb, Pace Law School Class of 2014
Nothing is more commonplace than a criminal defendant who claims to be innocent. But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false? Criminal defense lawyers face a significant disadvantage when they seek to discredit arresting officers. Nonetheless, it can be done. Here is a three-step approach that may be helpful.
STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY: In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor. Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony. What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.
The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth. Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words. Avoid arguing, and make a sincere effort to get complete testimony on the record. If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself. Remember Lieutenant Columbo? He was an excellent interrogator – friendly, but very knowledgeable, and tenacious. And effective!
I found a good resource in the Wisconsin Public Defender’s office, Cross Examining Police Officers and Agents: Who’s in Control Now? Here, the author mentions:
- Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.
- Try to establish that some element of the offense is missing.
- Force the police officer to commit to his/her version of events.
Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal. Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.
STEP TWO: TRIAL. The goal here is to highlight the inconsistencies in the police officer testimony. Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer. You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing. When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10. Should that motion be denied, then move on and present your case. In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.
STEP THREE: 330.30 MOTION TO THE TRIAL COURT: Now you can make use of all the inconsistent testimony you obtained! Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.” Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.
Obviously, the standard of proof required to win this motion is very high, and of the sixteen cases I researched involving a motion made on these grounds, only one of them People v. Quinones, succeeded. There is also case law holding that a challenge based on insufficiency of evidence will not work where there is more than one prosecution witness. See, e.g., People v. Ledwon, 46 N.E. 1046 (N.Y. 1897), People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).
Will this approach work? Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.
- N.Y. CPL § 290.10 (McKinney 2013).
- N.Y. CPL § 330.30 (McKinney 2013).
- People v. Ledwon, 46 N.E. 1046 (N.Y. 1897).
- People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).
- People v. Quinones, 402 N.Y.S.2d 196 (App. Div. 2d Dep’t 1978).