Pay Attention To My Pretty Uniform, Not My Testimony!

February 12, 2016

I want to be clear from the outset: I have nothing but respect for police officers (and this is coming from a criminal defense attorney). They put their lives on the line and deal with the worst sort of people every day. Anyone who complains that they are overpaid, overzealous or “bullies in blue” should either suit up as a cop for just one day or keep their mouth shut. In my opinion cops, firefighters and teachers should be the highest paid people in the country. So I’m certainly not sharing this article  (“Ex-L.A. County Sheriff Lee Baca pleads guilty in jail scandal”) to bash cops. I only share it to demonstrate that cops are still people, human beings, susceptible to the same mistakes in judgment, biases, prejudices, and unfortunately in some cases, corruption just like the rest of us can be.

Why the reminder? As I said, I’m a criminal defense attorney. I defend people accused of crimes. Sometimes heinous crimes. And whether you believe it or not, some of these actually didn’t do what they’re accused of doing. A “not guilty” or worse, a truly innocent client, is the worst type of client. Defending an innocent person will take years off an attorney’s life. Especially in our system of justice. That’s because our entire system of justice is based upon human actions and human nature, neither of which can ever be perfect. And more times than I care to think about, that imperfect system convicts an innocent person.

There are lots of reasons why that happens, and every case is different. But one aspect that I think is fairly consistent throughout every criminal prosecution and trial is the almost blind allegiance to law enforcement and our subconscious determination that a law enforcement officer is somehow more truthful, more credible, and more honest than any other witness. If the defendant testifies in his own defense, he has to overcome the strong bias from the jury that he’s probably lying to save his own ass even if this person has absolutely no criminal history and has never been anyone other than upstanding member of society. But the cop, well, the cop is a cop! He or she was just doing his or her job; they have no interest in the outcome of the case; so why would a cop lie?

I’m not saying cops lie necessarily. But I am saying cops are fallible. Their memories are subject to the same limitations that yours and mine are (case in point, I just spent half an hour trying to remember what I had for dinner Wednesday night – I write this on a Friday afternoon – because I couldn’t remember if I screwed up Ash Wednesday or not!). Their memories change or fade over time, just like yours. How many times have you been a thousand percent confident that an event occurred or something looked the exact way you remember it, only to find out you were wrong? Theoretically, that’s why cops take notes (or at least they should). But what if the notes the officer took were terrible and wouldn’t even help her to remember what month we’re talking about? Maybe she was going through some domestic issues at home at the time and was distracted on the job that day, same as you or I might be. Maybe she forgot to note something specific, or take notes at all, and wrote it up after the fact, after the adrenaline and focus had worn off.

And what is it about being a cop that makes us forget being a cop is still a job, just like yours or mine? As part of that job, a cop’s performance is always being evaluated. Blow a big arrest, tank testimony at a major trial, it’ll be reflected somewhere in her file. Think you have pressure from a supervisor to close a file? So do cops! In addition to pressure from the public and elected officials! So they might have at least a little incentive to “fill in the holes” just like anyone else.

No one likes to be second-guessed. How many times have you stood your ground in a situation amongst friends that you later realized was a little silly or weak, and yet you STILL never gave in? Now imagine having your professional role and decision-making ability questioned by some criminal defense lawyer in front of a judge, a jury, the prosecutor and a room full of spectators! Think you’d be more or less willing to admit that you may have made a mistake? I applaud and revere those police officers who candidly admit during their testimony that they don’t remember something important or maybe that they were just flat-out wrong. I don’t care who you are or what you think, that takes courage and integrity. If you hear a cop say something like that during a trial, odds are that’s an honest cop (although it is still incumbent upon jurors to make that determination for themselves in the context of the case). On the other hand, a cop who has all the answers filed away ready for immediate recall from their RoboCop-like mind? Maybe look a little closer at that one.

Unfortunately, as the article indicates, some cops do just plain lie. Even the top cops. I admit, the overwhelming majority of police officers are amazing individuals and if they do state something inaccurately, it’s more than likely just an inadvertent or unintentional misstep. But since cops are people too, maybe we listen to their testimony with a little closer ear, watch their demeanor with a little closer eye. Or better yet, just do what the jury system asks of you in the first place: evaluate everyone (including law enforcement) weigh everyone’s credibility on the same scale. A freshly pressed uniform, a shiny badge and a holstered Glock have absolutely no bearing on someone’s credibility.