Using the Tape for Plea Negotiations
It is all too tempting for defense counsel to disclose the exculpatory portions of the video to the prosecutor during plea negotiations. Yielding to that temptation may be unwise. It has been our experience that neither the prosecutor nor the officer will take the time to fully review the tape prior to hearing or trial. Instead, the prosecution will normally rely on the officer’s notes and reports to prepare for trial. If defense counsel alerts the prosecution of the frailties of their video evidence, the prosecution may attempt to remedy their problems through witness explanation. Additionally the prosecution may then better be able to focus on inculpatory portions of the tape. The best time to reveal the video to the prosecution is after cross-examination where there exists a minimal opportunity for cure or explanation.
Step 7
Using the Tape in Court
When using the tape in court, we suggest the following guidelines for effective cross-examination. First, be absolutely and completely patient. It is all too tempting after hearing the direct examination of the police officer to confront the officer with the tape at the outset. Conduct a full examination of the law enforcement witness that you know to be fully and completely inconsistent with what is shown on the video. (“The defendant fumbled with his license”; “the defendant had to lean on the side of the car for support”; “the defendant staggered as he exited his vehicle”).
Ask the witness to explain his statements. Normally this would violate every rule of cross-examination, but here you already know what the video shows. For example, in a situation where you know the video shows your client standing without assistance for the whole time he or she is on the tape you might ask the question,
“Officer, you testified on direct examination that the defendant could not stand without leaning on something for
support. Will you please tell the court on what the defendant leaned, and at what point in time he was leaning?”
This allows the law enforcement witness to fabricate the details and create easily impeachable testimony. These made-up facts in his or her testimony will devastate the prosecution when they are later exposed by the tape for the lies they really are.
Only after you have set up the officer are you ready to have some fun. Introduce the edited tape or tapes you have made. For example, you might introduce an edited portion of the videotape showing your client exiting their car without assistance and standing straight up, not leaning on any car.
By not using the master tape, you may prevent the prosecution from requesting the judge to play the entire tape of the case under the evidentiary Doctrine of Completeness. While there will be some parts of the tape that are exculpatory, there will also be some parts on the original “master” version that may hurt your client. By making your own edited version, you can control the damage the tape does to your client and insure that the finder of fact sees all of the exculpatory sections of the tape as emphasized in your cross-examination.
We suggest you have the officer watch the portion of the tape on which you previously cross-examined him before you once again ask him questions.
To return to our example, after having the officer describe the way your client had to lean on his car for support, show the officer the portion or portions of the tape that show your client standing up straight with no support. Pause the tape at a spot where you client is standing without leaning on the car so that your client is staring the officer-witness in the face. Then impeach the officer about previous testimony and the details which the officer essentially fabricated. When circumstances allow, we like to use a straight edge (a legal pad will suffice) to hold next to the image of our client to emphasize just how straight he or she is standing during the encounter with the officer.
These same methods may be used to not only impeach the arresting officer, but also any other witnesses you have discovered to have been present at the scene, but who do not appear on the video. For example, a second officer or a civilian witness who came to the scene but stayed behind the camera may testify about your client’s behavior. Once again, set them up, and then impeach them.
Easily Proving Police Perjury
When video tapes were first introduced to our jurisdiction, we were most concerned that our defense of the citizens accused would become much more difficult. To our chagrin, however, we have found that by spending more time investigating the case through the effective use of the police vehicle video, our credibility with the courts is much higher. We have found the methods discussed here make proving police perjury easy. We are now often able to prove almost unequivocally that the officers either did not have the necessary reasonable suspicion to initially stop our clients or that our clients’ ability to drive was not chemically impaired. Even in the worst of our clients’ cases, we have had success of obtaining dismissals of DUI/DWI prosecutions on due process grounds arguing the state cannot convict, with false evidence.5 We hope this article assists you in gaining the same success.
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