By Hon. (Ret.) Ken E. Adair
Be Aware of the Paradigm That Exists For Police
Video Transcribed: Many years ago, I had a preliminary hearing on a marijuana possession chargeback when it was a felony in certain circumstances. And without going into the exact details of the case, I knew that when I had a chance to cross-examine the police officer at the preliminary hearing, then I was going to point out that the encounter he had had with my client could not possibly have happened the way he said it did.
And that when he says that he saw my client drop a bag of weed in a one-hitter smoking pipe from his closed fist at hand into the back of his pickup truck, that he was guessing and speculating. Because there’s no way my client got out of the car from the wrong door, from the driver’s side door of his pickup. Because the driver’s side door was broken and he had to get out of the passenger side door with a clenched fist.
And when he was told to put his hands on the side of the truck with a clenched fist, with ostensibly, with marijuana and a one-hitter pipe in it, that he just let him take that clenched fist and put it up on the side of the car.
And what I did is I invited this police officer to come across the street to my office. I said, “I’d like to practice my questions on you.” Now, this was a very calculated decision because I knew this officer.
I liked this officer and he knew I liked him, and he knew I trusted him at the time. And I didn’t want to make him look bad in front of God and everybody at the prelim. So I gave him this opportunity and I asked him these questions. And when I got to the part about my client having a clenched fist and him not making him unclench his fist seeing what was in his fist, he realized as I asked him these questions that he didn’t see my client put that in there.
He just assumed he put it in there because he found it in the bed of the truck. And the officer said out loud to me, he said, “Oh, I see what you’re doing there.” And I said, “I’m not doing anything.” I said, “I’m just asking you questions.
I’m not doing anything at all.” I said, “Tell me what I did. What was I doing?” He goes, “Oh.” He goes, “I understand.” Well, he went and talked to the DA and the case was resolved. I think it was dismissed. It’s been a long time, but the police officers in my community were never allowed to visit with me at my office after that. It’s a violation of Oklahoma ethics.
I don’t know what the ethics are in your state, but a prosecutor cannot tell witnesses not to talk to a lawyer. And he told the police chief to tell his officers that they were prohibited from talking to me in my office. Now, what’s the point of all this? The point is, is that officers a lot of the time, most of the time, I’m not going to say nearly all the time may be nearly all of the time. They try to tell the truth.
However, their testimony is tainted by some principles, many of which they don’t even know or not aware of what’s going on. Number one, they’re taught to testify. You need to ask them about this on cross-examine, cross-examination. They’re taught to testify.
They take a course in CLEAT about giving testimony. Who else goes to class to learn how to testify? Who has to go to school and take a class with an instructor and a handbook and a check box and in place to take notes and to take a quiz or to do a practicum on testimony to learn how to tell the truth?
Who else on this planet goes to school to learn to tell the truth? Nobody. But they’re taught things like that CLEAT in Oklahoma. They used to be, I haven’t checked lately. They used to teach them. Don’t ever backtrack. Don’t ever give into a lawyer’s questions that are going to cause you to backtrack or change your testimony.
What that translates into is that they’re taught to never admit you make a mistake. Never admit under oath to a criminal defense lawyer that you made a mistake. And what do all humans do? We all make mistakes.
And so they’re taught, don’t admit that you made a mistake and a lot of them won’t do it because they’ve had that drilled into their head at truthful testimony school, right? It still seems funny to think about it, but it’s drilled in their head. They’re not going to change their story.
They’re not going to admit that they made a mistake. So ask them about it. “Did you go to CLEAT? Did you go to a class where they taught you how to give testimony? And they taught you never to change your testimony under oath because it’ll make you look bad, right?”
Well, you make mistakes. I make mistakes. Everybody makes mistakes. Cross-examine them on that. There are some other concepts that apply to police officers that they are in uniform and they have this air of confidence in this responsibility. It’s a great responsibility.
Many times it’s a grave responsibility that they have. And the last thing they want to look like is unprepared, not knowledgeable, not factual. They don’t want to look stupid. They don’t want to look errant. And they certainly, as I said before, don’t want to admit they made mistakes.
So officers will give testimony as fact when they’re actually speculating about the distance or the speed or the color of the car. They’ll give a verbatim quote of what somebody said and it’s not exactly a verbatim quote. Because they sat down two hours later and typed it into a computer or wrote it on a notepad, that can’t be verbatim.
And yet you’ll see things in quotes in police reports and they will testify under oath, under penalty of perjury facing prison time that is an absolute verbatim quote, that’s why I put it in quotations even though they wrote it down two hours later.
Now sometimes they’ll have it in their notes, ask them, “Did you put it in your notes contemporaneously?” They’re not lying. They’re not being disrespectful to the process. They’ve just been trained and coached To have that type of cynicism and skepticism in giving their testimony and being cross-examined by a scumbag criminal defense lawyer like you.
So don’t take it personally and don’t blow up on them because if you blow upon them, they’re just going to clam up more. And sure, there are officers out there who will intentionally deliberately lie because they have God on their side and they think they’re supposed to win. And it’s okay for them to lie and cheat and steal a very small percentage they’ll do it.
The bigger problem is people that guess and speculate and fill in the gaps and do so and give testimony in a way that they create the impression that they’re absolute facts, that they’re absolutely 100% sure of, and when that’s not true.
So be aware of that and be aware of the paradigm that exists for them when they get on the witness stand, and they’re being scrutinized by the prosecutor, they’re being scrutinized by the judge. There might be other officers or a case agent at the prosecutor’s table scrutinizing their testimony.
And it’s very intimidating for them, but you can guide them through the truth of why they testify the way they do and why they’re so reluctant to admit that they made a mistake. This is a bit longer of a video than I intended to make, but this is a very important thing. A deliberate lie is easy to cross-examine. A deliberate lie is easy to impeach. A reckless falsehood is almost impossible to impeach.
And as I’ve said in another video, a half-truth is like half a brick, you can throw it twice as far with twice the accuracy. That is the dangerous testimony. I hope this has been helpful. Sorry, this is longer than normal, but I appreciate you very much. And I look forward to talking to you some more. This has been trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.