Cross-examination tips from the New York Court of Appeals

This case from the New York Court of Appeals asks when lawyers can cross-examine police officers about allegations made against them in other lawsuits. The Court says allegations of prior misconduct may qualify as as legitimate impeachment material.

The case is People v. Smith, decided on June 28. It is settled law that prosecution witnesses in a criminal case can be cross-examined about prior specific criminal, vicious or immoral conduct if it relates logically to credibility. Think Mark Fuhrman at the OJ Simpson trial. The trial court has broad discretion to control cross-examination, however, to ensure things do not spiral out of control in the courtroom. Again, think OJ trial. Civil allegations of misconduct against a police officer from a different lawsuit constitute legitimate impeachment material which can impact the officer's credibility, the Court of Appeals says. Even if the prior bad allegations were not proven at trial or any other court proceeding. This includes prior federal lawsuits, where police officers are often accused of constitutional violations like false arrest and excessive force.

This appeal is actually three consolidated cases that raise the same cross-examination issue. In one case, People v. Smith, defendant was charged with a drug sale. The trial court said defendant's lawyer could not cross-examine the officers about allegations in a prior federal lawsuit that alleged they made narcotics arrests before the charges were dropped and the case settled. The trial judge said we don't know the specifics of that federal case, i.e, why the charges were dropped or why the case settled. This was error. The Court of Appeals says Smith's lawyer was allowed to ask the officers if they had falsely arrested the plaintiff in one of the lawsuits. But this holding does not help Smith. The Court of Appeals says his guilt was overwhelming and the cross-examination error was harmless.

For the other defendants in this appeal, the trial courts made similar rulings. For defendant Ingram, the Court says "specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct." Ingram was arrested on a gun charge, but the proof was not overwhelming, so the cross-examination ruling at trial was not harmless. In case number three, People v. McGhee, the guy was charged with drug-dealing. His lawyer also wanted to ask the arresting officer about false arrest allegations in prior lawsuits, and the trial court said No. But the Court of Appeals says Yes, because "defense counsel had a good faith basis to ask Detective Rivera about the prior false arrests based upon the specific allegations of the federal lawsuit. And, participation in a false arrest was relevant to the jury's assessment of the witness's credibility." But this was harmless error, as the defendant was apparently guilty as hell.

These cases do not answer the obvious follow-up question. If you can ask the police about allegations from a prior federal lawsuit filed by someone else, and presumably the officer denies ever committing any misconduct, what then? Does the defendant then get to prove that the allegations in the federal lawsuit were actually true? Unlikely. That would would create a trial within a trial and totally distract the jury. But the very fact that the officer was sued in the past might lead the jury to think the officer is a bad cop and cannot be trusted. Except that we all know that sometimes police misconduct lawsuits are filed by kooks. And that some cases settle because the City does not want to be bothered with the case and it just throws money at the plaintiff. The trial courts in New York will have to deal with these realities.