People v Smith, from the Court of Appeals yesterday

by Jill Paperno, First Assistant Public Defender and author of  Representing the Accused: A Practical Guide to Criminal Defense

Among some of yesterday's disappointing Court of Appeals decisions there is one that can be useful to us - People v. Smith, et. al.  The Court recognized that police officers may be cross-examined about their tortious conduct in other situations, as described below.  Sadly, although the Court recognized error on the part of the trial courts in the three joined cases, the Court found errors in two of the three cases were harmless.

In the series of cases decided with Smith, the trial courts had precluded any cross-examination into allegations of a law enforcement officer's prior misconduct made in an unrelated federal lawsuit.  In other words, the courts barred questioning of officers who were facing Section 1983 or other lawsuits based on allegations that they had violated defendants' civil rights in other cases through excessive use of force and other misconduct.  Happily (and rightly), the Court of Appeals recognized that police officers should not be subjected to special treatment.  As the Court said in citing past cases, "These cases stand for the unremarkable proposition that law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination."  

If you have tried to cross-examine police on allegations they face in civil rights cases, you may have found that a trial court prevented you from crossing if the allegations were merely in a complaint, or if they didn't allege a type of misconduct related to the misconduct you alleged in your case.  But the Court recognized that these limitations are wrong.

The Court reviewed the importance of cross-exam and impeachment, and noted "It is elementary that '(i)impeachment is a particular form of cross-examination whose purpose is, in part, to discredit the witness and to persuade the fact finder that the witness is not being truthful.  One traditional method of accomplishing these ends is to demonstrate through questioning that the witness has been guilty of prior immoral, vicious or criminal conduct bearing on credibility (cite omitted)."

The Court stated, "Our recognition of the relevance of prior bad acts that have been alleged in court filings, but not proven at trial, is consistent with our precedent; we have previously decided that there is no prohibition against cross-examining a witness about bad acts that have never been formally proven at a trial (cite omitted).  Likewise, a police witness's prior bad act that similarly has not been proven in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination.  Nor do allegations of police misconduct lose their relevance to a police witness's credibility simply because the alleged bad acts are not regarded in all cases as criminal or immoral..."

The Court continued by noting that if a lawsuit does not result in an adverse finding against an officer, defendants should not be permitted to ask a witness if s/he has been sued, if the case was settled if there was no admission of wrongdoing, or if criminal charges were dismissed.  "However, subject to the trial court's discretion, defendants should be permitted to ask questions abased on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness."

The Court provides a framework for analysis:  1.  Is there a good faith basis for inquiring (such as the lawsuit); 2.  Specific allegations relevant to the credibility of the officer must be identified; and 3.  the trial judge must exercise discretion in assessing whether inquiry would confuse or mislead the jury or create a substantial risk of undue prejudice to the parties."  The Court notes that a federal lawsuit alleging tortious conduct by police testifying as prosecution witnesses in the state case provides the good faith basis for raising the issue.

So when you are considering cross-examination of a police officer, don't forget to check PACER and County Clerk records.  Check the internet.  Be ready with this case when the prosecutor objects or the Court says allegations in a civil suit are not enough.  The trial court may still exercise discretion, but the discretion is not unlimited.