Whether your attorney is trying to get the best “deal” or win
your case at trial, casting doubt on the credibility of the cop(s) involved
in the case can become important to your defense. Broadly, there are two
ways to go about casting doubt on the cops’ credibility:
- First, you can directly assert that the cop(s) knowingly engaged in deceitful
or wrongful behavior contributing to your charge(s) (for example, planting
evidence, lying, excessive force, sexual harassment, racist or sexist
- Second, you can assert that the cop(s) conducted a “sloppy investigation”
(purposeful or through ignorance) contributing to a reasonable doubt.
In some cases, you may be asserting some combination of these two.
This article addresses the first broad challenge to the cops’ credibility,
which is directly asserting deceitful or wrongful behavior contributing
to your charges.
Aggressive Challenge to the Credibility of Officers Involved in the Case
Cops directly engaging in deceitful or wrongful conduct contributing to
your charges can take various forms. They may plant evidence, they may
fabricate evidence such as informant information, what they actually saw
or about statements you made to them, they can beat you down and arrest
you for resisting, they may act totally racist or sexist towards you and
arrest you when you don’t put up with it or they can sexually harass
you and arrest you when you rebuff their advances.
Importantly, you may not be the only person the involved cop(s) has/have
done this to. If the prosecutor won’t deal to your satisfaction
or your case appears headed for trial and you believe the cop(s) may have
engaged in deceitful or wrongful conduct, you and your attorney should
consider a Pitchess and related motions to have a Court review the involved
officer’s personnel file to see whether others have made similar
complaints or there have been disciplinary actions for similar conduct
in the past.
The presence of such similar complaints or related actions in the officer’s
personnel file may not only change the complexion of your case in the
eyes of the prosecutor but may well be admissible at trial under, among
other bases, Evidence Code § 1101(b) to show the officer’s
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake or accident – in your case.
Depending on whether your issue is officer excessive force, officer statement
coercion, an illegal search, false arrest or other misconduct will govern
just which motion you will file. Your attorney will either be familiar
with these or will research which motion is appropriate. Some of the names
you may hear is a Memro motion, a Pierre C. motion, a Pitchess motion
or some combination thereof. Each of these motions is governed by the
type of law enforcement misconduct you are alleging in your case.
If a judge feels your declaration supports disclosure they will typically
review the officer’s personnel file to determine if any information
exists that would be disclosable to a defendant. Typically if complaints
exist you are not entitled to all of the reports but you are entitled
to date, place, nature of the complaint, all witness information, result
of the investigation, and any discipline that may have been imposed. However,
some judges feel that you’re only initially limited to the name
of the prior complainant against the officer and the contact information
for that complainant reflected in the file.
In such a circumstance, you must have an investigator attempt to contact
the prior complainant and interview them about their experience with the
officer. Only once that is done will the court entertain a follow-up motion
for disclosure of more information. Although this limited route almost
ensures your attorney must engage in follow-up motion work, I personally
don’t mind it because the more work I do in a case the more work
others must do and it is always important to actually interview the prior
complainant(s) because they can make powerful witnesses against the cop(s) at trial.
In all, these motions take a lot of effort on the part of your attorney,
but in the right case they can be very productive and result in major
evidence against a law enforcement officer who typically might carry a
lot of power with a jury. Depending on where you are officers can be viewed
as unassailable by juries and you need everything you can get to show
that they are not telling the truth or they used excessive force and caused
you t have the right to respond.