Interviewer: If you have a case where the police say one thing and your client says something totally different, how do you go about breaking that down? I understand you can question the police officer in a trial, but how else do you go about finding out that there’s truly a discrepancy and proving it, or at least casting doubt on it?
Throughout the State of Arizona, the Arresting Officer Will Almost Always Testify Against You at Trial
Brian Sloan: Unfortunately, cases in the city courts in Maricopa County and pretty much most of Arizona, the evidence presented against my client will come down to what the officer says. It’s going to come down, not to what the truth is, but what the evidence will show, and the officer usually has no reason not to testify.
Occasionally, the defendant has reasons not to testify, such as they have prior convictions that they don’t want to come out or there are other issues in the case that they don’t want to talk about.
Your Defense Attorney Will try to Find Discrepancies in the Officer’s Testimony and Try to Disprove There was Reasonable Suspicion
So police officers will always get their say. The defendant occasionally will not get to tell their side of the story, so a lot of it does come down to interviewing the police officer, making sure I know exactly what their testimony would be at trial and impeaching them if their testimony changes during trial.
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A common tactic I incorporate is trying to show that the police officer was not fair. They weren’t fair in the way that they made the defendant perform the field sobriety tests. They weren’t fair in the way that they pulled over the person’s car. They weren’t fair in the way that they treated the suspect and I try to parlay that into, “This officer is not fair; this officer is not to be believed.”
Other than that, not everyone has witnesses. There isn’t a video camera that captures everything. Not everyone is driving with passengers in the vehicle. However, sometimes there are instances where people do have passengers.
I have a client now who had five passengers in his vehicle. All five of those people may need to testify and I am expecting them to testify the same way that my client testifies. However, the judge will probably believe the officer because the officer is the officer and the other five people are friends of the defendant and, of course, they’re all going to agree on the story.
The Police Do Want to Add to Their Conviction Rate
So the officer’s more believable because he doesn’t have a horse in the race when the fact of the matter is the officers really aren’t independent people, they want convictions. They don’t only just pursue justice they also want convictions.
Your Defense Attorney Will Search for Evidence That Establishes Your Claim and Can Disprove What the Police Are Claiming
Interviewer: Has there been any evidence that’s come up to establish one side of the ‘he said she said’ equation as being right? Is there evidence that comes up commonly or is it pretty rare?
Brian Sloan: It is very rare. Usually it has to be a videotape recording that is going to be the best evidence and it does come up every now and again. I’ve seen one video where the officers just slam someone down on the police car then claimed that the person was resisting arrest.
Fortunately, there’s videotape showing that there is no resisting arrest, and that for some reason the officer just slammed someone down on a car or on the ground. Unfortunately sometimes you see some celebratory ‘high-fives’ by the police officers after doing something like that.
A Video Recording Can Become a Valuable Evidence for the Defendants
Usually, it does require a piece of physical evidence, such as a video, because the testimony of one person versus testimony of another person usually isn’t going to be enough. You need actual physical evidence.
In Arizona, we recently had an instance with a sergeant who was caught on videotape taking money out of a drawer of someone who called in a burglary. People need to be vigilant. People need to use those smartphones that they have with the built-in cameras. The person will not be charged with any sort of offense for hitting the record button while the officer is standing there at the window. Hide it if you need to. Hit the record button. Get videotape evidence.
I did actually have one client who said that he did just that and the officer reached in and deleted the video, but there are ways of recovering something like that, and that can be the best evidence because there’s no getting around what is on that videotape if the officer is saying something different.
Interviewer: Have you had much success if an officer changes testimony later on in the trial, or does that rarely occur?
How Does Your Defense Attorney Cross-Examine the Arresting Officer?
Brian Sloan: I’m very reluctant to say an officer is a liar. I have never called an officer a liar on the stand. I hate to think that an officer is acting with malice when they testify. There’s only been one instance where I truly believe the officer was lying on the stand.
During trial, the officer claimed not to remember anything. However, when an issue came up and evidence was about to be suppressed, all of a sudden the officer remembered what happened with my client a year and a half ago on a very unimportant event, except that it happened to be important as an issue in whether evidence was going to be suppressed.
I’m convinced that officer lied, and if I remember correctly the judge was convinced the officer lied. This is because the judge did not believe the officer to be credible when they testified that they don’t remember anything, but then happened to remember witnessing a blood draw being conducted a certain way. The problem is the whole idea of, “Trust us. We’re the police.” There’s really no one really policing the police. We’ve seen issues in California, the Rampart Division where there really isn’t video cameras.