A reporter in our area obtained the personnel file for a deputy, we discovered that this deputy was previously terminated in 2002 from a Narcotics Task Force for various reasons. In these records, there is a letter from the Commander at the time. The letter from the Commander states, that the reasons for the deputy's dismissal were that the deputy gained gained entry to residences without consent and the District Judge deemed the deputy not to be credible. There is also a letter dated 2002, wherein the District Attorney at the time stated the DA's office would "not sponsor the testimony" of this deputy for he was not credible on the stand. The letter then gives specific instances of misconduct, including; defendants were believed over this officer during motions, the deputy testified in contradiction to other officers about material issues, the deputy erroneously identified a defendant in court, the deputy did not allow defendant's the right to counsel when requested and the deputy obtained entry to residences under false pretenses.

It is my position that our office should no longer "sponsor" the deputy's testimony. We should evaluate each case this deputy is on, attempt to prove the case without the deputy's testimony and dismiss the ones wherein this deputy is the only office on the case.

However, my counter part disagrees with me, and feels that we should put the deputy on the stand and allow a current judge to make the determination of the deputy's testimony.

Is there any advice out there on how to proceed??

You will almost certainly already have entertained everything I could say, but I will still make four observations.

The allegations of prior misconduct were apparently numerous and quite serious. Not sure about the certainty of the proof supporting them.

The officer's record since 2002 also needs close examination. Everyone can make real change and probably deserves a real opportunity to make amends. But, clearly this officer may be an officer for the wrong reasons.

Even if you initially foist the credibility decision upon the judge and the judge finds the present testimony credible, I am assuming you could still make your own assessment and choose not to proceed with a prosecution. This process would be chosen on the premise that two heads are better than one.

Have a detailed conversation with the officer, essentially subject him to the cross-examination you/he could expect at the suppression hearing before drawing a conclusion.

I have seen dismissals used more as a docket control measure than a realistic determination of what justice requires.

I think it is very important to consider as prosecutors the implications to our justice system if we try to take an individual's freedom based on testimony from an individual as you have described.

The approach you are taking in my opinion is correct. At the end of the day one of the most important jobs we do as prosecutors is help protect the integrity and fairness of our system of justice. Passing the proverbial tainted buck to the judge to make a determination is not appropriate in the situation you describe.

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I think it is very important to consider as prosecutors the implications to our justice system if we try to take an individual's freedom based on testimony from an individual as you have described.

This statement, in my opinion, nails it. The big picture-implications of using this officer to convict someone are frightening and damaging to the cause of seeing that justice is done. Even if, hypothetically speaking, a judge says that the officer is currently credible, how do you keep the prior contrary determinations away from the jury? More importantly, why do you keep the prior contrary determinations from the jury? If the officer were a witness aligned with the defense, the State would certainly do everything possible to impugn that witness' credibility with those prior facts.

This message has been edited. Last edited by: MW,

Your subject head mentions Brady/Morton. Are you wondering about disclosure as well? In case you are....

I think you are going to also have to seriously consider disclosure of this information to the defense in every case he is a witness in, especially when you have a ranking superior finding him non-credible.

Sounds like everyone already knows about it now though....

My question is under what theory can the judge determine the witness isn't credible?

We have and will continue to fully disclose all of the documents that we have on this officer. I am of the opinion of MW and C. Martin. That this officer has no business being part of the State's case in chief.

However, my counter part is of the opinion of Mr. Peterson, that the allegations may be difficult to prove since they are from 2002, and therefore the officer should be given a chance to clear his name. For the officer claims that this never occurred and he was never aware these letters existed. Which honestly, sounds even more fishy to me.

I do not intend on using this as docket control, in any way. My counter part wishes to have a pre-trial motion in limine to determine the admissibility of this information. If the judge rules the information admissible then we dismiss the case, if the judge rules the information inadmissible, we go forward.

However, I would suspect that an officer would be allowed to be cross examined on a prior termination due to his lack of credibility on the stand??

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Originally posted by KelsDown:
However, I would suspect that an officer would be allowed to be cross examined on a prior termination due to his lack of credibility on the stand??

For whatever reason, the whole world seems to believe that anything a witness has said in the past that goes to their credibility for truthfullness is fair game. And that's how judges often rule. But it's not the law.

Start with TRE 404(a)(1). Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. We all remember this from day 1 of evidence in law school.

The exceptions for a witness are 608 and 609.

608 says you can offer opinion testimony about a witnesses character for untruthfulness. The rule goes on to specifically exclude any extrinsic evidence to prove specific instances of the witness's conduct.

609 allows you to use a criminal conviction to attack a witness's character for truthfulness if it was a final conviction (not probated) of a felony or a crime of moral turpitude,and is generally less than 10 years old.

Any out-of-court statements made by the witness in the past that are going to be hearsay unless they were made under oath and they are inconsistent with the witness's testimony in the instant case.

The only other exception would be if the witness's testimony creates a false impression, which opens the door to impeachment evidence to correct that false impression.

So, without offering an opinion as to whether or not your office should take this officer's word for anything, there's practically no situation where the defense can say "Judge, we get to show the jury that this witness has done specific bad things in the past because it makes it more likely that he did those bad things in this case." Because that's propensity evidence, it's prohibited by the rules of evidence, and it doesn't fall into any exception without the witness opening the door on the stand.

I have read the string and would like to add a few details not clarified. This was in 2002 when the state legislature required restructure of all task forces in the state and adding DPS over-sight. All Officers were released and this officer filed a wrongful termination suit. After two letters from his law firm where it is pointed out "nothing negative was in his file" and should be re-assigned. We then begin to see the letters show up in the officers file, they are all dated. All Official documents and the termination letter it self states it started due to re-structuring per the legislature, all the rest is listed as to why he is not re-assigned. The suit centered on "AT WILL or FOR CAUSE" not the officer performance. Then two weeks after termination, one "unsigned, Undated letter slows up in the employee file written from a third person perspective on a letter head of the NEW COMMANDER who had not worked with or supervised the officer in question. I do believe he is responsible for the note, but it is all second hand hearsay.
Better yet since the "District Judges" were not named, I found that odd and did the diligence to find out who they were and did make contact with both, I also located the former District Attorney and the Attorney assigned to prosecute for the Task Force cases. None of the Four knew anything of the letters or criticism offered of the Officer. None had any issues with the professional conduct or testimony of the officer and could offer nothing to add to the events we are looking at today. All 4 had good memory of all names involved in that time frame. I will add that in 6 plus years of current employment and hundreds of cases and responsibility in over 100 search warrants, no defendant has ever gone to court and accused this officer of lying or planting evidence. They all admit he got them, none like it, but do own up to it. He is decorated past and present for his efforts, perfect? no, none of us are. In fact less than two months ago two defense attorneys and two prosecuting attorneys with one officer were subpoenaed to testify at a hearing. The rule was invoked and yes testimony differed between the attorneys, does not mean anyone lied or should be disbarred, only proves perspectives give differing results.
I speculate that the file was written for reasons more relevant to the termination suit and was never intended to see the light of day 15 years later especially in a Morton issue. And I do understand that the officer was not aware letters written 2 weeks and 2 months after his termination, do we all know what might be in our files from former employers especially if we had sued them?
Now I would like to hear how we should proceed? We do need disclosure and assurances that ALL testimony is fair and ethical in prosecutions, but I do not think this is what was in mind for this application of Brady/ Morton.,