Testifying - Part 3

Every officer must understand that defense attorneys go to (Continuing Legal Education) classes to learn how to trick officers on the witness stand.

For that reason, you should ALWAYS talk to the prosecutor before you testify. Make sure that he / she is clear what you did -- and make sure you know what the defense attorney is going to ask.

Often in my class, I tell officers not to answer cross-examination questions that ask the officer to speculate, give conclusions or opinions. And then I give everyone cases where officers get slaughtered on the witness stand by defense attorneys who use this technique.

The refusal to answer speculation questions is only a 99% rule.

Let me tell you about a relatively recent case where it would have been good to have answered a speculation question.

The case is In re Mario T.

Two officers are called to a burgary around a six-story Chicago Housing Authority building. Apparently three males were involved. Upon reaching the second floor of the building the officers see four males "loitering" in the hallway.

One officer decided to question the four males, and "performed a protective patdown" first. As a result, the officer felt what she immediately recognized as drugs in Mario's pocket. After the officer felt this, she asked what the substance was and Mario told her it was rocks. She then pulled the crack cocaine out of his pocket.

The issue in the case was -- did she have reasonable suspicion that Mario had a weapon?

The Illinois Court of Appeals ruled that she did not. The prosecutor never asked specifically what "reasons existed which would lead" the officer to believe the suspect(s) had a weapon.

Ironically, the defense attorney, on cross examination, asked the officer "whether she had any reason to suspect that Mario was armed in any way." The prosecutor objected to this question as calling for speculation. The judge sustained the objection, and "thus may have prevented the officer from explaining her actions."

You cannot frisk suspects unless you can explain exactly why you feared for safety. It has NEVER been enough to simply say that you did a TERRY search simply for you "safety."

As a postscript -- I believe that, even though the officer never did explain why she felt that she must search the suspects, she still had reasonable suspicion to conduct the search:
1. She was on a burgary call -- three males involved. (This was never elaborated on in court.)
2. This was a very high drug and gun area. (This was never elaborated on in court.)
3. The suspects outnumbered the officers. (This was never elaborated on in court.)
4. Mario did not live in the building. (He testified that he going to visit his sister.)
5. The officer testified that she feared for her safety. (But never stated why.)

I spend a lot of space in my book -- The Illinois Officers Legal Source Book -- explaining how to handle this problem in the street, in your reports and in your testimony.

BEst -

DA