Cross-Examining a Traffic Cop: 10 Tips

Stay focused when you must question a police officer

When a defendant questions a prosecution witness (for example, the cop who pulled you over) it’s referred to as a cross-examination (or “cross-exam”). If you’re ever in this unfortunate position, you may wish you had taken the prosecutor’s plea deal.  You may feel intimidated, shy, confused and out-of-place (welcome to the U.S. justice system). Take a few deep breaths and try to remember some of these tips:

1. Don’t shoot yourself in the foot. In the excitement of courtroom questioning, you may stumble and ask a question that includes an admission of guilt, such as, “Where were you when I rear-ended the other car?” Instead, you should always be non-committal, such as, “Where were you when the driver claims I rear-ended her car?”

2. Don’t go fishing. The one mistake that attorneys avoid in cross-examination is asking a question that they don’t know the answer for. So, if you don’t have a specific reason to ask a particular question, don’t ask it. Keep in mind that attempts at eliciting new information rarely helps your case. What it does do is give the officer a chance to repeat damaging facts likely to hurt your case.

3. Stay focused on your goals. Your goal in cross-examination in traffic court is to somehow diminish or eliminate the prosecutor’s evidence. So your goal typically is to somehow prove that one or more legal elements of the particular offense are missing. For that reason, you should research the basis of the charge against you, know the elements and see which, if any, are the weakest links. Alternatively, you’re trying to ask questions that show the existence of a defense. So, in that case, you’ll need to know your acceptable (and possible) defenses. Sometimes, you achieve this goal by eliciting information that shows that that the officer’s powers of observation were not perfect, or that the officer was doing several things at once. For example, you may ask questions that show that the officer may have lost sight of your car between when the offense was observed and when you were pulled over.

4. Never act antagonistically towards the officer. This is a classic error and one that will always backfire against the defendant. Even if you’re convinced the officer has lied, or provided a crazy response, it’s your job to try to expose this by politely asking more direct questions, not by saying, “That’s a lie!” or “You’re out of your mind.”

5. Ask specific—not open-ended—questions. Try to avoid questions such as, “What happened after that?” or “Why did you pull me over?” The officer could seriously tarnish your defense by replying, “Because you violated the traffic code.” It’s preferable to ask questions like as, “Isn’t there a cement divider between where you were parked and where I was located?” Where were you located when you first saw my vehicle?” “Where was my vehicle when you first saw it?” ?” “In which lane were you traveling? “Did you have a clear view of the traffic on the road when you claim you observed the violation?” “Was there any traffic on the road other than your vehicle and mine?”

6. Make sure to test the officer’s perceptions. Most convictions hinge on the police officer’s perceptions of what happened. And it’s not just the officer’s hearing or eyesight that’s at issue, it’s also the officer’s memory because the officer is typically testifying weeks or months after the incident. The more you can establish that the officer doesn’t remember where, why, and how you were stopped, the more doubt you raise as to the accuracy of the officer’s testimony, and the more likely it is that the judge or jury will find a reasonable doubt as to your guilt.

7. Bad memory is good. If the officer repeatedly says he or she can’t remember, that may help your case. The more the officer says he can’t remember, the better, since you can later use that poor memory to cast doubt on the accuracy of his or her testimony about your violation when you make your final argument. In this connection it is often a good idea to ask questions you know the officer won’t be able to answer. The best way to prepare to do this is to look at the officer’s notes beforehand.

8. Stay focused on the most important facts. Don't waste your time asking about minor details or trying to raise technical objections. These kinds of efforts rarely help in traffic court where the judge is seeking to move through a busy calendar. Stay locked on the big issues that will acquit you.

9. Be prepared. Preparation is the key to success. Develop your cross-examination step by step, beginning with the least important background questions and ending with the ones that go to the heart of your defense. Make a double-spaced list of questions you intend to use, and take it with you to trial. Then, depending on the officer’s testimony earlier in your trial, pencil in necessary additions and changes.

10. Stay flexible. As Dwight Eisenhower said, plans are useless, planning is everything. In other words flexibility and knowledge of what to expect is how to achieve victory. So if you occasionally get an unexpected answer, you’ll want to be as flexible as possible. If a line of questioning is going down the tubes, drop it; if the office responds evasively to certain questions pursue them.

To learn more, see our topic page on The DUI Case.

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