Early in my career a trial lawyer told me, “The answer is in the documents,” and it has proven true so often that I consider it Gospel. I scrutinize the documents. I read the important documents again and again and again. I commit them to memory. I compare them against other documents and, if available, transcripts of the author. I look to see when they were written to determine the order in which they were written. I analyze not only what is written, and how it is represented, but what is missing. Use these documents to pin the witness to the mat.
Police Report Not Objective
Many attorneys review police reports to discover what happened. A police report is not an objective recitation of the facts from a disinterested witness. Instead, it is usually written by the arresting officer post-arrest. Most officers write a report not with the goal of helping the arrestee obtain an acquittal, but to make the arrest stick; to safeguard the fruits of a constitutionally suspect search; to satisfy a supervisor that the arrest was justified; or to provide the prosecutor with a summary of the “facts.” If they have previously testified or have been schooled in drafting reports, they may write the report to minimize their exposure on cross-examination. They will carefully select their words. They may twist the words of witnesses, misrepresent what the client said or how he said it, and deliberately leave out exculpatory evidence. If they have made similar arrests in the past, for DWI for example, they may simply reuse the same “facts” or phrases, either out of habit or laziness. Few jurors will have considered what factors motivate a detective or officer in drafting his reports. Use cross-examination to both expose the officer’s motivations and to educate the jury about them.
Pattern Cross: Pressure to Draft Comprehensive Report
It is not uncommon for an officer or detective to testify to an important “fact” not included in his report. If questioned on his failure to note the “fact” in his report, an experienced officer will typically shrug it off with, “This is only a summary, Counselor. It doesn’t include every detail or every observation.” If left unchecked, on redirect this officer might decide to sneak additional “facts” into his account. Worse, officers who have not yet taken the stand will hear how easy it is to slip some additional “facts” into their testimony. Corner the officer by highlighting the pressures on the officer to make his report as comprehensive as possible.
Officer taught at Academy to draft comprehensive reports
Q: Officer, you attended the Police Academy?
A: That’s correct.
Q: At the Academy, you were taught the importance of drafting police reports?
Q: That the report should include all important facts?
A: Well, again, Counselor, it is a summary.
Q: You were taught that a report should include all important facts?
A: It’s only a summary, as I’ve said.
Q: Okay. The Academy actually gives a course in drafting a police report?
Q: At the Academy, you were taught that other officers or detectives might rely on your report in conducting their investigations?
A: That’s correct.
Q: That these detectives or officers require all the important information to do a proper investigation?
Q: And for that reason, your report should be comprehensive?
A: Well, my report includes the necessary information.
Q: For that reason, your report should be comprehensive?
A: Ah… yes.
Officer drafts report for benefit of prosecutor
Q: You were taught that the prosecutor will be provided with your report?
Q: To familiarize himself with the case?
Q: And rely on that report to make a bail argument?
Q: To inform the court of exactly how strong the evidence against the defendant is?
Q: To allow the prosecutor to assess the likelihood of securing a conviction?
Q: To, perhaps, negotiate a plea with the defense attorney?
Q: To prepare for trial?
Q: Which includes preparing a direct examination?
A: That’s right.
Q: Of you?
Q: And you’ve learned that, prior to the trial, you may have little or no contact with the prosecutor?
A: Unfortunately, that’s true.
Q: You might meet with the prosecutor for the first time the morning of the trial?
Q: And in such a case, much of what a prosecutor learns about your arrest he will glean from your report?
Q: And for that reason alone, your report should be comprehensive?
A: As I said…
Q: To make sure that the prosecutor is properly prepared, you’ve learned that your report should be comprehensive?
Q: When drafting your report, you make sure you include everything you want the prosecutor to know about your case?
A: Well, I try.
Q: And you’ve learned that sometimes six months, a year, or more might pass between the arrest and the trial?
Q: And during that six months or more, you’d expect to make additional arrests?
Q: To testify in other cases?
Report drafted when events and memory are fresh
Q: And like all of us, your memory immediately following an event is better than it is six months or more after the event?
A: That’s true.
Q: You were outside the courtroom this morning?
Q: You were seated on the bench just outside this courtroom?
Q: Reading your report?
A: Ah, yes.
Q: Reading your report to refresh your memory?
Report drafted in anticipation of cross-examination
Q: When drafting your report, you include everything that you will want to remember when the trial rolls around?
Q: You are also aware that the defense lawyer will receive a copy of your report?
Q: You know from testifying in other cases that the defense lawyer will cross-examine you on the contents of your report?
Q: That’s another reason you were re-reading your report?
A: Well, I… that’s true.
Q: You know from experience that if you testify to an allegation not contained in the report, the defense attorney will question you about that during cross-examination?
Q: That’s happened before?
Report is “complete summary” of all important facts
Q: You wrote the report yourself?
A: Yes, of course.
Q: You had the time necessary to draft the report?
Q: You’re not given a time limit?
A: What do you mean?
Q: In other words, you’re not given 10 minutes to draft a police report?
Q: You take the time you need to draft the report?
A: Within reason.
Q: When you finished the report, you read it to yourself?
Q: You were satisfied that it included every important fact?
A: As I said, it’s a summary.
Q: You were satisfied that your report included every important fact?
A: It was a summary.
Q: A summary that did not include every important fact?
Q: So, you provided the prosecutor with an incomplete summary?
Q: In preparation of your testimony here today, you re-read an incomplete summary to refresh your memory?
A: Ah, no.
Kevin J. Mahoney is a criminal defense lawyer in Cambridge, Massachusetts. He regularly provides on-air legal analysis for Fox News Live, Fox & Friends, CNN, Nancy Grace, and Court TV. His successful defense of Christina Martin, dubbed the “Jell-O Murderer” by the national press, was chronicled on Court TV’s Forensic Files. Mahoney has won 36 of his last 38 trials.