# A legal question about impeaching witnesses **URL:** \ **Category:** Factual Questions\ **Created:** [July 26, 2017, 7:49am UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145 "2017-07-26T07:49:43Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 26, 2017, 7:49am UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/1 "2017-07-26T07:49:43Z")
A Baltimore police officer has been accused of planting drugs at a crime scene. The evidence against him is really strong; he left his bodycam running and if shows him planting the drugs. But at this point, he is legally innocent. However, there are other people who have been arrested and are working their way through the trial system due to drug evidence this officer supposedly found. What are their options? Their lawyers are presumably going to call the officer to the stand and ask him to testify on the evidence he declared he found in these other cases. But assuming he didn’t leave his bodycam running at every case, it’s going to be a question of his credibility. Can a lawyer for another case use the bodycam video as evidence to impeach the credibility of the officer’s testimony and create reasonable doubt? ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [July 26, 2017, 8:01am UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/2 "2017-07-26T08:01:39Z")
> [@Little\_Nemo](#): > > However, there are other people who have been arrested and are working their way through the trial system due to drug evidence this officer supposedly found. What are their options? > > Their lawyers are presumably going to call the officer to the stand and ask him to testify on the evidence he declared he found in these other cases. Actually I think that the prosecution is going to have to call the officer to the stand in order to have evidence that the drugs were (supposedly) found. Carry on… ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 26, 2017, 8:19am UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/3 "2017-07-26T08:19:58Z")
> [@Princhester](#): > > Actually I think that the prosecution is going to have to call the officer to the stand in order to have evidence that the drugs were (supposedly) found. > > Carry on… Either way, the officer is presumably going to testify that he found the drugs during a legal search of the residence of the defendant John Smith. Smith’s lawyer would like to say _“You weren’t wearing a bodycam at the time you searched my client’s residence. But we have this video of you planting drugs at another person’s residence a week after you claimed you found drugs at my client’s residence. Based on that evidence, it’s very possible that you also planted the drugs you claim you found at my client’s residence. Therefore, the jury must have reasonable doubts that the drugs were my client’s and must find him innocent.”_ But this line of argument only works if you can present the video as evidence. Hence my question. ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [July 26, 2017, 8:25am UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/4 "2017-07-26T08:25:28Z")
Yes, it’s a good question, and if I were more of a criminal lawyer I might have a go at answering. I was just pointing out a minor technical detail. ---
**Author:** ![Crazyhorse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crazyhorse/32/31_2.png) [@Crazyhorse](https://boards.straightdope.com/u/Crazyhorse)\ **Post date:** [July 26, 2017, 9:03am UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/5 "2017-07-26T09:03:22Z")
According to the Baltimore Public Defenders office the video can and will be used to raise doubts in all of the cases the three officers were involved in. [They are demanding that prosecutors drop all of those cases](https://www.thenewamerican.com/usnews/crime/item/26561-baltimore-state-attorney-reviewing-100-cases-in-wake-of-drug-planting-video). > [@](#): > > And Debbie Katz Levi, head of the Baltimore Public Defender’s Special Litigation Section, released a statement saying, “Officer misconduct has been a pervasive issue at the Baltimore Police Department, which is exacerbated by the lack of accountability.” Her statement continued, “We have long supported the use of police body cameras to help identify police misconduct, but such footage is meaningless if prosecutors continue to rely on these officers, especially if they do so without disclosing their bad acts.” > > Her office is now demanding that the prosecutor’s office drop all cases in which Pinheiro and his two colleagues were the arresting officers. Pinheiro alone “is a witness in approximately 53 active cases,” according to the statement. Presumably, not every arrest these three bad cops made were wrongful. Even still, all these cases will now be tainted by any association with these three officers. That is part of the real price of bad cops doing dirty deeds: Real criminals who are actually guilty can now play this video as a possible “Get Out of Jail Free” card. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 26, 2017, 2:19pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/6 "2017-07-26T14:19:12Z")
I suppose the question will be - how likely is it that the cases in question could have been a result of planted drugs? If any of those three “found” the drugs during the arrest or search, it’s arguable they were planted. If some other, uninvolved officer found them, and it can be shown the problem officers were never in a position to plant them… they still have a case. However, it’s pretty easy to slip a small baggie anywhere during a walk-through of a house, so it’s an uphill climb for the prosecutor. I don’t think it’s necessary to introduce the video, just ask the officer point-blank on the stand… do you deny planting drugs in a different case? How many times have you planted drugs? IIRC IANAL taking the fifth cannot be used to infer guilt when the defendant does it - but the judge and jury can make whatever they want of a witness taking the fifth related to a different case. More interesting is what happens to cases already adjudicated. I assume a number will appeal based on this new evidence. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2017, 3:29pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/7 "2017-07-26T15:29:14Z")
> [@Little\_Nemo](#): > > A Baltimore police officer has been accused of planting drugs at a crime scene. The evidence against him is really strong; he left his bodycam running and if shows him planting the drugs. > > But at this point, he is legally innocent. However, there are other people who have been arrested and are working their way through the trial system due to drug evidence this officer supposedly found. What are their options? > > Their lawyers are presumably going to call the officer to the stand and ask him to testify on the evidence he declared he found in these other cases. But assuming he didn’t leave his bodycam running at every case, it’s going to be a question of his credibility. Can a lawyer for another case use the bodycam video as evidence to impeach the credibility of the officer’s testimony and create reasonable doubt? Yes. But to question credibility, you can ask the officer if he planted the evidence at issue in the current trial. Assuming he denies this, you can ask if he’s ever planted evidence. Sometimes that type of approach is barred as _collateral impeachment_, but here I think virtually every judge would allow it as relevant to the officer’s credibility. And if he says he has planted evidence in the past, then he’s pretty well destroyed his credibility with the jury. If he says he never has, then the video can be impeached to attack his credibility. Either way, I doubt a prosecutor – even in Baltimore – would roll the dice with any case that rested on this officer’s field work. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2017, 3:50pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/8 "2017-07-26T15:50:21Z")
> [@Bricker](#): > > Yes. > > If he says he never has, then the video can be impeached to attack his credibility. The video can be OFFERED to attack his credibility. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 26, 2017, 4:40pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/9 "2017-07-26T16:40:18Z")
As I recall, a similar example was used to impeach the credibility of Mark Furman in the Simpson trial, when he denied ever using the n-word. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [July 26, 2017, 4:53pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/10 "2017-07-26T16:53:59Z")
The overwhelming majority of defendants are too poor to get legal representation. Their public defender is just there to transmit the plea offer and tell them to take it. And since bonds are set at ridiculous levels, if they want out of county jail they take it regardless of guilt, evidence, corruption. All the people awaiting trail based on these officer’s actions as well as those already convicted are generally in a terrible position to contest things. Filing even the most basic motion isn’t going to happen. Hence it’s gotta be done as a group lawsuit with the DA agreeing to some deal for all of them. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 26, 2017, 5:14pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/11 "2017-07-26T17:14:23Z")
> [@ftg](#): > > The overwhelming majority of defendants are too poor to get legal representation. Their public defender is just there to transmit the plea offer and tell them to take it. And since bonds are set at ridiculous levels, if they want out of county jail they take it regardless of guilt, evidence, corruption. > > All the people awaiting trail based on these officer’s actions as well as those already convicted are generally in a terrible position to contest things. Filing even the most basic motion isn’t going to happen. > > Hence it’s gotta be done as a group lawsuit with the DA agreeing to some deal for all of them. If even a public defender fails to file a motion based on these circumstances, the defendant would have a pretty good case for failure to properly represent, I would think. Is the public defender paid by the city? Then perhaps the city could be included in the lawsuit for damages for a failure to properly represent him. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [July 26, 2017, 7:23pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/12 "2017-07-26T19:23:34Z")
In Massachusetts, State Chemist [Annie Dookhan](https://en.wikipedia.org/wiki/Annie_Dookhan) admitted to falsifying evidence she was supposed to be testing. > [@](#): > > In May 2015, the Massachusetts Supreme Judicial Court ruled that defendants whose convictions on drug charges were based on evidence potentially tainted by Dookhan can pursue retrials without having to face more charges or tougher sentences. > > On April 18, 2017, Massachusetts dropped more than 21,000 low-level drug criminal charges involving Dookhan. Out of the 15,570 cases involved in her work only 117 will be pursued according to Daniel Conley, the district attorney in Suffolk County, which includes Boston. In this case, the state took it on itself to do the legwork and dismiss the cases she’d been involved with, except for a few that it deemed important enough or that they had other lines of evidence. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [July 26, 2017, 8:02pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/13 "2017-07-26T20:02:54Z")
The thing is, the Prosecutor’s office has a limited budget, with a limited number of prosecutors and staff. That means in normal cases of some guy with a bag of drugs, they say to the defendant and his public defender lawyer, “Officer Friendly found the drugs at your place, plead guilty to possession of such and such and you’ll get such and such sentence”. And the public defender says to his client that if they go to trial the jury is going to believe the cop, so take the deal. And the defendant does. And so the wheels of justice turn. In this case though, the defense attorney is going to say, “Wait a minute. We’re going to trial, and point out that the cop in question videotaped himself planting drugs in another case. We’re going to trial.” And then the prosecution says “Fine” and drops the case, and gets on with the other 9999 cases where the arresting officer didn’t videotape himself planting drugs. The Prosecuting attorneys would have to be pretty bored and have nothing better to do to waste their time bringing any low level drug cases to trial where this cop was involved. So a bunch of people just got a get out of jail free card. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 26, 2017, 8:51pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/14 "2017-07-26T20:51:45Z")
> [@ftg](#): > > The overwhelming majority of defendants are too poor to get legal representation. Their public defender is just there to transmit the plea offer and tell them to take it. What is your basis for these conclusions? I don’t deny that public defenders are overworked and underpaid. To the contrary. I have good reason to know just how underpaid and overworked they are. But the notion that this translates into the kind of slapshod analysis you describe above there is not generally an accurate one, in my experience. On what is your experience based? ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [July 27, 2017, 1:21pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/15 "2017-07-27T13:21:41Z")
> [@md2000](#): > > If even a public defender fails to file a motion based on these circumstances, the defendant would have a pretty good case for failure to properly represent, I would think. Is the public defender paid by the city? Then perhaps the city could be included in the lawsuit for damages for a failure to properly represent him. And who is going to file this pretty good case??? Where is the money, time, expertise going to come from? In our state, the PDs offices are sub-minimally funded and staffed. They are overwhelmed and then some. Just showing up at a hearing isn’t guaranteed. It’s not like TV at all. ---
**Author:** ![TruCelt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/trucelt/32/523_2.png) [@TruCelt](https://boards.straightdope.com/u/TruCelt)\ **Post date:** [July 27, 2017, 2:20pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/16 "2017-07-27T14:20:18Z")
I would think that the Defense could at least succeed in deferring the trial until the key witness’s criminal trial has been completed. Or barring that, that the courts would want to somehow prevent having to re-try every one of them afterward when an appeal would almost certainly be granted. (Or would it? Would the officers’ conviction qualify as new evidence?) Dropping every case seems premature, as there may be other evidence. But in a case where the prosecution is counting on these guys, wouldn’t they just drop the case? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [July 27, 2017, 2:54pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/17 "2017-07-27T14:54:20Z")
> [@ftg](#): > > And who is going to file this pretty good case??? Where is the money, time, expertise going to come from? > > In our state, the PDs offices are sub-minimally funded and staffed. They are overwhelmed and then some. Just showing up at a hearing isn’t guaranteed. It’s not like TV at all. There are plenty of jailhouse lawyers filing their own appeals and (often frivolous) lawsuits. I’m not sure a lawyer would be personally exempt from liability if they were sued for negligently failing to provide sufficient defense, if they missed an obvious situation like this. > [@TruCelt](#): > > I would think that the Defense could at least succeed in deferring the trial until the key witness’s criminal trial has been completed. Or barring that, that the courts would want to somehow prevent having to re-try every one of them afterward when an appeal would almost certainly be granted. > > (Or would it? Would the officers’ conviction qualify as new evidence?) > > Dropping every case seems premature, as there may be other evidence. But in a case where the prosecution is counting on these guys, wouldn’t they just drop the case? Well I’m sure the simple analysis would be - “drop everything this bunch of officers did, said, found about this case? Would we still have a case?” If they were the arresting officers who found the evidence, and it was small enough to plant - probably the case is dropped. (I would imagine the other officers in the video who stood around and watched the principal officer plant evidence would be equally suspect, if their police reports showed they neglected to mention this detail either.) ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [July 28, 2017, 4:29pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/18 "2017-07-28T16:29:00Z")
> [@Bricker](#): > > But to question credibility, you can ask the officer if he planted the evidence at issue in the current trial. Assuming he denies this, you can ask if he’s ever planted evidence. Sometimes that type of approach is barred as _collateral impeachment_, but here I think virtually every judge would allow it as relevant to the officer’s credibility. > > And if he says he has planted evidence in the past, then he’s pretty well destroyed his credibility with the jury. > > If he says he never has, then the video can be impeached to attack his credibility. To expand on this for laypeople, the point is that the video cannot be offered into evidence straight out. First, you (the defense) must establish the required predicate to impeach - you need the witness to testify to something which the impeachment evidence (the video) tends to disprove. If the officer admits he has planted evidence in the past, the video is irrelevant because it does not disprove anything he said. It works the same way for any other impeachment evidence. If you have, for example, a police report in which the officer states no drugs were found at the scene, it’s inadmissible hearsay. But once the officer testifies that drugs _were_ found, the report becomes admissible as a prior inconsistent statement and as impeachment evidence. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [July 28, 2017, 4:48pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/19 "2017-07-28T16:48:37Z")
Right, but when the Officer admits to planting drugs in the past, there’s your reasonable doubt right there. In most cases the simple testimony of a cop that they found a bag of a white powdery substance that the lab later confirmed was Pharmaceutical X is enough for a conviction. Sure, a jury could find that the cop might be lying. But most won’t. Juries tend to believe cops unless there’s some reason to believe the cop might be lying. A videotape of this cop planting drugs, or the cop’s admission that they have planted drugs in the past is such a reason. If the Prosecution had an unlimited budget they might go to trial even on shaky cases like these. But they don’t. Going to trial on a case where the main evidence is the testimony of your drug-planting cop means you have to skip trials on other cases that are much more likely to succeed. They normally rely on the defendants pleading guilty in small time drug cases like this, because normally the case is a slam dunk. And if you reject the plea bargain when the case is a slam dunk, then sure they’ll go to trial rather than give up because the case is still a slam dunk. When your case depends on the testimony of a cop that can be proven to have planted drugs in the past, the case is no longer a slam dunk. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [July 28, 2017, 5:29pm UTC](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145/20 "2017-07-28T17:29:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > To expand on this for laypeople, the point is that the video cannot be offered into evidence straight out. First, you (the defense) must establish the required predicate to impeach - you need the witness to testify to something which the impeachment evidence (the video) tends to disprove. If the officer admits he has planted evidence in the past, the video is irrelevant because it does not disprove anything he said. Is this because he is a witness, and not the person on trial? [Next page](https://boards.straightdope.com/t/a-legal-question-about-impeaching-witnesses/792145.md?page=2)