Feb 10, 2016 Police shortcuts and police willful ignorance contribute to reasonable doubt
One day in 1979 working a front cash register at the old Caldor department store during the winter holiday sales rush as a high school part time job, I saw a never-ending line of consumers buying consumables in our overly-consumer-drenched society. How I yearned to return to my usual book and music department, playing the Doors on the turntable and delighting being surrounded by books and music, even if not on a higher quality inventory caliber. A manager saw my building frustration and told me to take a break, so I did.
Police do not get such breaks, not even to go to the bathroom after stopping a suspect. Street police constantly deal with seemingly endless streams of suspects and arrestees who want even less to do with the police than with dentists, with dentists themselves feeling underappreciated enough. Add to that the pressure police feel to show they are being productive by turning in issued tickets and completed arrests, and we see criminal suspects’ and defendants’ liberty fall at the wayside too often.
Injury victims’ lawyers frequently tell jurors that the victim would have preferred their pre-injury body to asking for a money judgment from the jury, but with the damage already done, the money judgment is requested. Similarly, criminal suspects who are victims of insufficient and faulty police work prefer that the disadvantageous shortcuts had never taken place, but then need to have their lawyers use those shortcuts to their best advantage with settlement negotiations, seeking case dismissals and evidence suppression, and seeking acquittal based on reasonable doubt.
One glaring police shortcut is the constant drumroll of police who engage in willful ignorance about whether a suspect speaks English as a second language, can fully understand the police, and even needs an interpreter, particularly if my client speaks with a possibly non-English-speaking accent. Monolingual cops can be the worst offenders on that score, but too many fully bilingual police join in. Then, when I bring up the language matter during trial cross examination, the prosecutor often argues about the “absence of evidence” of a language issue, with the judge (if a bench trial, or to curtail that line of questioning if a jury trial) too often joining in. What is my solution to such redirection away from the cop’s willful ignorance? To put my client on the witness stand and thus waive his Fifth Amendment right to remain silent, and then to be at the mercy of the court-paid interpreter to even sufficiently convey my client’s words and facial language and body language? To have his bilingual friend or family member (if one exists) to testify about how much my client’s English skills are not good, when the friend or family member has limited examples of that if they usually speak in another language with my client?
If my client cannot understand the cop, that non-understanding rather than inebriation or drug inducement helps explain my client’s otherwise seeming inability to correctly and logically answer the cop’s questions (if my client decides to waive his right to remain silent in the first place) and to follow the cop’s directions. We also have police officers who speak English as a second language with thick accents and sometimes insufficient grammar that may be hard to understand, which by itself might be okay so long as my client is not blamed for the cop’s harder-to-understand accent. We also have have cops who speak English as a first language but just do not speak well. See here for more on that conundrum, even coming from the bench. At least get police encounters videotaped and audiotaped to reduce police embellishment about how much the suspect did or did not understand the police on the incident date.
And what if my client simply does not sufficiently hear the cop? That can happen when my client is hearing impaired (I rarely learn of police asking if my client has good hearing), when the cop is a low talker, when the cop is talking over my client, when multiple cops are talking over each other, and when background noise is coming from traffic, the cop’s blaring radio and elsewhere.
One engages in folly to think that every suspect who does not understand a cop will speak up to say so, particularly if not asked, and particularly those who grew up in countries or neighborhoods where cops represented terrorizing authorities rather than helpful public servants.
Another area where police sometimes practice willful ignorance, or else unforgivable forgetfulness, is in DWI cases, when they do not ask the suspect before proceeding with field sobriety tests — or forget if they asked, or guess or prevaricate that they asked “because that is my standard operating procedure” — whether the suspect has any physical, health or other impairments to interfere with field sobriety tests. And the suspect cannot adequately answer that question before first being told in sufficient detail what those field sobriety tests entail. Not long ago, a judge acquitted my client on DWI mainly because the cop never testified whether he asked my client if he had any physical impairments that would interfere with doing field sobriety tests; other judges will presume no such impairments unless the suspect spoke up, unprompted with any question by the cop about any impairments.
Another area of great concern is the cop who testifies about months-old instances in minute detail about critical items that are not in his or her police report (for instance that s/he stopped my client not only for driving too fast (in the police report) but also for running a stop sign (not in the report)) but then have to constantly refer to his or her notes to “refresh recollection” (too often actually parroting back what the cop just read) for such basic items as how strong the odor of alcohol was on my client’s breath and whether my client did or did not have any passengers in his car when the police stopped him.
Our tax money pays plenty of money for policing, and in return not only for those dollars but more importantly because of people’s Constitutionally guaranteed civil liberties, at the very least, criminal suspects and criminal defendants must not be victims of shortcut police work, rushed police work, shoddy police work, and willful ignorance by police. When police fall short of their obligations, their failures must not be shifted towards and into the victimization of criminal suspects and criminal defendants. To do otherwise will turn the Bill of Rights into more of a farce than it already has been risked by too many police, prosecutors and judges.