By Collin County Criminal Defense Lawyer Jeremy Rosenthal
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 Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court 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.