If you have ever seen a police officer testify in court, you know that it is often an impressive feat. A good officer provides his recollection of the facts in a detailed, chronological fashion that reads like a story. If they have their rhythm, inflection and tone down, it might even sound like they are recounting a vivid memory of the incident at issue. But how can they recall a single incident so well when they are involved in hundreds of arrests, citations and other interactions per year?
It is hardly a secret, but few people realize that police often have virtually no real recollection of the events that are testifying about. Instead, they rely on their police report or notes written on the back of the ticket. Just before trial, they review their notes. Sometimes they will even refer to them during their testimony. Over time, an officer can acquire the skill to recount an event in court to the point that it sounds like something which they remember vividly. In fact, they barely remember the event, if at all.
Technically this is not considered lying. The officer is entitled to testify as to what he has written in his notes. If he is cross-examined as to his recollection of the facts, he has to answer truthfully that he is testifying based on his notes. However, this is a difficult tactic to use. It will always backfire if you say, “Hey copper, you’re lying, I know it, you know it, everyone knows it. You don’t remember any of this, do you?”
Instead, a series of questions asked just the right way can get the point across, without calling the officer a liar. For example:
Q: It appears that everything you testified to here today is in your written notes from the day the citation was issued, is that correct?
Q: Did you write additional citations that day?
A: I think so.
Q: You don’t know for sure?
Q: Describe the weather that day.
A: I don’t recall.
Q: Do you specifically recall what the traffic was like…or, are you simply repeating what you can gather from your notes?
A: I don’t recall specifically, I’m testifying mainly from my notes.
Q: Is that what you’re doing with all of your testimony?
Q: Can you tell me what color my client’s vehicle was, without your notes?
A: I think it was red.
(Even if it was red, the next question helps)
Q: If I showed you a picture of a silver car, would you be surprised?
A: I can’t say I would be. I’m not sure.
. . .
As you can see, it is possible to demonstrate to the court that the police officer does not actually recall the events that led to the citation or arrest. Even better, you accomplish this without directly attacking the officer’s credibility. Most officers will depart very little from what they wrote in their notes, because they do not want to be tripped up by allegedly fabricating a detail.
So although it might be frustrating to the accused when a police officer testifies as to something which he does not remember, a skilled attorney can use the officer’s lack of recollection against him.