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New York Court of Appeals: Police Officers May be Cross-Examined About Acts of Dishonesty Like Any Other Witness

by Douglas Ankney

The Court of Appeals of New York ruled that police officers may be questioned about prior acts of dishonesty, subject to the trial court’s discretion, just like any other witness.

In August 2013, a person fired a single gunshot at a group of teenagers on a street in the Bronx. No one was injured, but two police officers identified Clarence Rouse as the shooter, claiming they saw Rouse raise the gun to eye level, fire it, drop the weapon on the ground, and flee on foot. The officers lost sight of Rouse but, several minutes later, saw him again and arrested him.

The gun was collected almost immediately after it was dropped, but, inexplicably, it was not tested for DNA or fingerprints. Consequently, at trial, the State’s case rested almost entirely on the officers’ identification of Rouse as the shooter.

But prior to trial, Rouse had moved to explore multiple grounds for impeachment during cross-examination: (1) misstatements that one of the officers had made to a federal prosecutor about his role in a ticket-fixing scheme and (2) prior judicial determinations in which each officer was found to have given unreliable testimony. The ticket-fixing scheme was tried in federal court, and in that federal proceeding, a firearm recovered by the officer was suppressed. But in the instant case, the trial court ruled that Rouse could only elicit testimony that the officer had been involved in the scheme and was disciplined by the NYPD.

The trial court ruled that Rouse could not explore the officer’s “misstatements” to the prosecutor because the officer had not been federally charged, so there was no good-faith basis for the inquiry on cross-examination. Regarding the prior judicial determinations that each officer had given unreliable testimony, the trial court was made aware that in United States v. Williams, 2011 U.S. Dist. LEXIS 134352 (S.D.N.Y. 2011), the suppression court concluded that the traffic infraction both officers claimed to have justified the stop in question was contrived. And in United States v. James Russell, No. 11 Cr. 312 (S.D.N.Y. 2011), the suppression court concluded one of the officers testified incredibly with respect to a frisk that resulted in the seizure of the firearm in question. But the trial court in the instant case refused Rouse’s request to use this as evidence to show the jury that another judge had found the officers not credible. Thus, the jury believed the officers and convicted Rouse of several crimes, including second-degree attempted murder.

The Appellate Division affirmed, and the Court of Appeals granted further review.

The Court observed that “law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination.” People v. Smith, 58 N.E.3d 53 (N.Y. 2016). Cross-examination “is the principal means by which the believability of a witness and the [veracity] of [the witness’s] testimony are tested.” Davis v. Alaska, 415 U.S. 308 (1974).

Prosecution witnesses may be cross-examined on prior specific criminal, vicious, or immoral conduct, provided the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility. Smith. Defendants may explore specific allegations of wrongdoing relevant to the credibility of law enforcement witnesses, subject to the discretion of the trial court, as long as the defendant has a good-faith basis for the inquiry. Id. A “good-faith basis” requires only that counsel have “some reasonable basis for believing the truth of things” about which counsel seeks to ask. People v. Alamo, 246 N.E.2d 496 (N.Y. 1969).

Because the trial court had ruled that the officer had to be federally charged before a good-faith basis existed, the Court of Appeals ruled the trial court abused its discretion as a matter of law concerning the officer’s misstatements to the prosecutor. And with regard to a court in prior judicial proceedings finding that both officers provided unreliable, incredible testimony, the Court of Appeals concluded that the trial court also abused its discretion as a matter of law when it precluded cross-examination on their prior testimony in those proceedings. The commission of perjury or other crimes or acts of individual dishonesty or untrustworthiness will usually have very material relevance with respect to a witness’ credibility. People v. Sandoval, 314 N.E.2d 849 (N.Y. 1974).

Defendants may inquire into a prior judicial determination that a police officer’s testimony was unworthy of belief. People v. Marzed, 161 Misc.2d 309 (Crim. Ct, New York County 1993). The Court concluded that the trial court’s abuses of discretion denied Rouse his right to cross-examine the prosecution’s witnesses.

Accordingly, the Court reversed the order of the Appellate Division and ordered a new trial. See: People v. Rouse, 2019 N.Y. LEXIS 3253 (2019). 

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