Tuesday, September 04, 2007

Larry Craig and Police Officer Opinion Testimony

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply - what did he actually do wrong - tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions (not unless laws have become so over broad and burdensome that they've even caught me, Public Defender Dude, by surprise). So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I've so often railed against - police officer opinion testimony (or, as I like to put it, "my opinion is that you're guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It's like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I've investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner." It is highly prejudicial, and in many cases, highly meaningless. Let's face it, any old person in the world could figure out whether a certain crime benefits a gang without having to hear a police officer point his finger at your client and say "he definitely did it for the gang." How about general testimony about how a gang may benefit, or something to that effect?

And the Larry Craig case is just like that. The police officer sees something, and interprets it one way. Larry Craig interprets it the other way. It is so difficult to get a jury to realize that a police officer sees the world in a certain manner, and everything they see falls into line in that manner. When you go out looking for gay people, suddenly everyone is gay and hitting on you. Even the most subtle actions can be taken as hitting on you.

The only way that Larry Craig could have ever been convicted in this case would have been if the officer had gotten on the stand and said "I've investigated thousands of these cases, and what Larry Craig did was hit on me and attempt to have sex with me." How do you refute that? It's very difficult.

That being said, going against that kind of testimony can be very fun, as well. You get to pose hypotheticals to the police, who have to sometimes take ridiculous positions to continue to assert your client is guilty.

I had one gang case where the gang officer's testimony won the case for me. Through cross examination, I was able to put forward a whole different scenario about how the crime took place, and ask if that would be consistent with guilt or innocence, and the officer had to concede that looking at the case in that manner it made my client not guilty (of the whole crime, not just of the gang allegation).

So, I hate these types of cases, and this testimony, but a good lawyer learns how to turn it in their favor, or at least neutralize it as much as possible.

Good luck Larry (and I mean that - they're nothing wrong with being gay!).


jdgalt said...

One of the basic principles America and other civilized countries are supposed to follow absolutely is the Rule of Law. This phrase has a very specific meaning: it was a law, enacted by the Roman Senate during the early republic period, which required the Senate to write down all laws and post them outside where anyone could read them. Thus, the Rule of Law established the principle that it must always be possible for any ordinary person (by learning the law and obeying it) to be safe from any punishment by anyone representing government. They can never legitimately be allowed to go after you on a whim; you have to have broken a published law (and that law must be possible to obey without breaking another).

Any law that gives a police officer the power to decide after the fact whether you've broken the law is obviously a violation of the above principle and so is invalid on its face.

Indeed, a good case can be made that any law which is commonly violated but rarely enforced (for instance, loitering) falls into that same category and is invalid, regardless of any supposed rationale offered for its existence.

So long as the Rule of Law is not followed, we are a nation of men and not of laws. It's unfortunate that people who don't get hassled in this manner (usually because they "look right" in the opinion of local police) are able to go through life unaware of this problem.

PD Dude said...

Hmmm, John Galt (and Ayn Rand?) a public defender? I like it. Keep writing brother (sister).

Anonymous said...


I agree with you about the challenges this type of vague charge raises for the defense. It can be quite frustrating to convince a jury if the cop testifies in such a manner. Though, like you said, it may be easy to pick him apart on the stand.

In similar cases, I sometimes find that the jury just disregards everything and votes it's "common sense" despite the fact that they're not supposed to. Sometimes, this common sense approach tends to vote "guilty" just by imagining what must of really happened and what the intent must have been
(kind of like your barb at Craig in the end about its ok to be gay).

Anonymous said...

Still a great discussion. The Craig case is a springboard for many interesting legal debates. In response to CS-Legal let me say that these statutes (vague) and this type of testimony (rampant opinion by a cop that really borders on speculation - I've crossed gang experts before and it's maddening) are fundamentally unfair. Here's why: We all seem to agree that this type of testimony is unfair (or at least kind of unfair). But it is no solution to say something like "good thing the defendant has a good lawyer who can discredit this cop in front of a lawyer." What about the poor guy, through no fault of his own, who has a crappy lawyer? Or perhaps just not that good of a lawyer? Or the cop is just really, really slick? Why should that defendant who is guilty of something (or in some cases actually innocent) do decades more in prison (or a lifetime) just because the cop can basically testilie that the defendant did it all for the gang? That isn't fair. It's worse than 3 strikes, where a defendant's punishment becomes draconian simply because of the defendant's history. With the gang enhancement, it now becomes a game where if the cop is good enough, or the defense lawyer inexperienced enough, or the case close enough, that a defendant gets extra decades (or life) in prison, quite possibly for something he didn't do. If that isn't about thwarting justice, I don't know what is. A fair California supreme court (if we had one) would find that gang evidence is too speculative, unreliable, and inflammatory to allow in most cases. Most trial judges are afraid of saying no to prosecutors and/or cops, so the evidence rarely gets ruled inadmissible. Most jurors are easily frightened by the concept of "criminal street gangs," so they are more than happy to do the DA's bidding. And legislators LOVE tougher sentencing laws, especially against those who would never be their constituents anyway. If gangbangers stopped committing crimes and violence, and instead started doing voter registration drives and donating to PACs, these laws would likely disappear overnight. And if school-age kids could vote, and DID vote, schools would suddenly never have funding problems again. Neither is likely to happen anytime soon, I surmise.

I hate to rely on a jury's "common sense" in a close case. "Common sense" is usually what they use to disregard reasonable doubt and convict my client. I'd rather see this evidence stopped before it comes out in front of a jury.

Anonymous said...


Not much I can add as I completely agree. I disagree with PD Dude enough about a host of issues, but certainly this isn't one of them. We are all on the same page.

This kind of evidence is certainly unfair... I was trying to point out some of my frustration and experience dealing with it. No disagreement here, man.

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