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27.6 Police Officers And Governmental Employees

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RATIONALE: Due to their position of authority, a police officer or other official might be considered by the jury as more probative than other witnesses by the jury.

POINTS AND AUTHORITIES: The jury has no right to credit or discredit a witness’s testimony merely because he or she is a police officer. (See e.g., Bush v. U.S. (DC Cir. 1967) 375 F2d 602, 604-05; State v. Nieves (CT 1995) 653 A2d 197, 199 [it is preferable to give appropriate separate instruction on police testimony]; Commonwealth v. Gay (PA 1980) 413 A2d 675, 678; People v. Caserta (NY 1966) 224 NE2d 82, 85-87; REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 34 [Testimony Of Law Enforcement Officers] (CLE State Bar of Arizona, 1996); CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.29 [General Jury Instructions-Testimony of Police Officers and Other Officials] (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996); CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 7.08, [Police Officer As A Witness: Credibility] ¶ 2 (New York Office of Court Administration, 1983); Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Instruction 13, [Testimony Of Police Officer] p. 408 (South Carolina CLE, 1994); but see Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 26 [Testimony Of A Police Officer Or Government Agent (Commentary Only)], commentary (1988) [Committee recommends that no special instruction be given regarding police officer or government agent].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

STRATEGY NOTE: The usefulness of a special police officer instruction will depend on the defense theory of the case. If there is a concern that the jury will unduly credit the testimony of a police officer, the instruction may be helpful. However, if the defense theory is to question the motivations and conduct of the police then the above instruction would not be appropriate and, instead, instructions focusing on the police bias (e.g., FORECITE National™ 29.1.11 [Bias Of Police Officer As Expert Witness Based On Potential Forfeiture Of Defendant's Assets]) should be considered.

    Alternatively, an instruction which asks the jury to consider whether the witness has a "stake in the outcome" may be used.  (See Sample Instruction # 5, below.)

SAMPLE INSTRUCTION # 1:

SAMPLE INSTRUCTION # 2:

[See The Shellow Instructions: Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness.]

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RATIONALE: Due to their position of authority, a government employee officer or other official might be considered by the jury as more probative than other witnesses by the jury.

POINTS AND AUTHORITIES: See FORECITE National™ 27.6.1 [Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

SAMPLE INSTRUCTION:    

    In the final analysis, you are the exclusive judges of the believability and credibility of any witness and you are not to give the testimony of a police officer any greater or lesser weight or credence simply because he or she is a police officer.  You must evaluate such testimony in light of the same factors that apply to other witnesses.

[Source: FORECITE National™; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS Instruction 13, [Testimony Of Police Officer] p. 408 (South Carolina CLE, 1994).]

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RATIONALE: When the defense theory is that a law enforcement witness was lying as a result of bias, motive or professional interest, it is crucial that the jury understand and fully consider this defense. Unless the jury is instructed on the defense theory, there is a danger that it may not give it the same credence and consideration as other matters which are included in the instructions.

POINTS AND AUTHORITIES: See Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 6:17 [Witnesses-Police Officers And Other Officials] (West, 1999); see also People v. Caserta (NY 1966) 224 NE2d 82, 85-87; FORECITE National™ 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions]; see also FORECITE National™ 37.9 [Relevance Of Motive: Interest Of Witness In Outcome Of Proceeding]; FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].

See also FORECITE National™ 27.6.5 [Law Enforcement Witness Credibility: "Blue Wall Of Silence"].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

STRATEGY NOTE:  If a specific instruction on professional interest is refused an alternative is Sample Instruction # 2 which refers to a "stake in the outcome."

SAMPLE INSTRUCTION # 1:

    In evaluating the testimony of a police officer consider what affect, if any, the officer's professional interests had on the truthfulness and accuracy of the testimony.

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 2 [Where Police Officer Testimony Is An Essential Fact]:

SAMPLE INSTRUCTION # 3:

[See The Shellow Instructions: Testimony Of Police Officers: Credibility To Be Judged As Any Other Witness.]

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    27.6.4    Bias Of Police Or Government Witness: Potential Benefit From Forfeiture In Drug Case

    See FORECITE National™ 29.1.11 [Bias Of Police Officer As Expert Witness Based On Potential Forfeiture Of Defendant's Assets].

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PRACTICE NOTE: It is well documented that a law enforcement officer may be reluctant to give testimony which implicates a fellow officer in wrong doing. (See The "Blue Wall of Silence" As Evidence Of Bias and Motive to Lie: A New Approach to Police Perjury, Gabriel J. Chin and Scott C. Wells, 59 U. Pitt. L.Rev. 233, Winter 1998; see also John L. Burris, "Blue v. Black" (St. Martins, 1999) (ISBN: 0312203926).)  Hence, when appropriate evidence and/or instruction on the "Blue Wall of Silence" may be appropriate.