Can You Show the Arresting Officer’s Disciplinary Record in Trial?

February 12, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s possible but it’s certainly not a given.

The Texas and Federal Rules of Evidence try to keep trials from turning into free-for-all mud slinging contests.  Imagine how ridiculous a trial would be if every officer could be drilled on the witness stand about their 4th grade report card.  Then again, if an officer has taken part in shenanigans which call his/her word into question — it might be key for a jury to know.

Two Rules — What the Judge MUST Allow and What they MAY Allow

The rules categorize prior conduct of a witness into two main categories.  Evidence that a judge must allow the jury to see and evidence the judge has the discretion to allow jurors to see depending on the circumstances.

Crimes of Moral Turpitude 

Under Tex.R.Evid. 609, evidence of a prior conviction for a crime of moral turpitude (typically crimes that involve honesty) shall be admitted as well as any felony conviction provided the conviction was in the last ten years.  This gives courts a bright-line, stringent test for allowing prior conduct into evidence.

The problem is that disciplinary action against an officer is virtually always going to fall short of the requirements under rule 609.  Good police agencies will fire an officer for any conduct which could be used to torch the officer repeatedly on the witness stand… and clever police agencies know not to make reports of misconduct in writing unless they absolutely have to.

A combination of other rules may, in certain instances, allow general impeachment of an officer based on past incidents of misconduct even if those bad acts fell short of being convictions required by rule 609.

Rules Which Allow You to Get Into the Officer’s Records 

Tex.R.Evid. 404(b), 405(b) 608, and 611 which you can read here combine to give a judge the ability to determine whether to allow a jury to hear evidence of bad conduct of a police officer (or any other witness for that matter).

Situations where a prior bad act by an officer would be allowed in evidence or excluded from evidence are like snowflakes in their ability to be unique and unpredictable.

An example where it may be admissible, however, is where a specific incident of police misconduct in the past is extremely similar to an occurrence in the present case — and the prosecutor has left the jury with a clear mis-impression that the office has a perfect history.  For instance where a police officer who routinely makes DWI arrest coincidentally has his microphone go off when giving instructions on field sobriety tests time after time against department policy.  At some point “I forgot to check my microphone batteries before my shift” quits working as an excuse.

These scenarios are typically very complex.  If you have questions about a specific case you should bring it to your attorney’s attention to see under what circumstances an officers past problems may be brought to the jury’s attention.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact an attorney direction.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential or privileged.

Will I Make the Police Mad if I Don’t Talk With Them?

February 11, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Probably.  But you shouldn’t worry about their feelings.

Jails and prisons are full of people who gave statements to police when they were under investigation.

Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.

Won’t the Police Drop the Case if they Think I’m Innocent? 

Of course that’s possible and I’m sure that happens.  But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.

Police are not judges.  They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over.  They investigate crime.  They do that by building a case element by element as defined by the Texas Penal Code.  Often the only way they can make their case is through a statement of the accused.

By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges.  So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.

Can’t I Convince them I’m Innocent?

Good luck with that.  Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation.  People don’t change their mind once they’re made — and police are no different.

Here’s a common scenario I joke about:

Detective:  What happened?

Suspect:  We went into the party for a few minutes.  We didn’t really know anyone there so we left.  It was a bit awkward actually.  I’m not sure we even had a drink while we were there.

Police report conclusion — “Suspect admitted entering the house.”

See what you’re dealing with?

Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?

Maybe yes and maybe no.  At the very least you should consult a lawyer to hear their thoughts about your case.  Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior.  The State of Texas’ version could be to send you to prison depending on the situation.  Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.

In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Information given to attorney through this forum is not confidential or subject to the attorney-client privilege.