After the hearing, the prosecutor attempted to pay me a compliment: “I leaned in to tell the OIC that if I were in trouble, I’d hire you.” I accepted the compliment. I had just finished cross examining an experienced police officer, on the force for over 15 years and an experienced witness. He was battled tested. He wouldn’t go down easy. But down he went.
Trapped by my killer cross examination, he was stuck: he wrote his report without referring to an odor of marihuana in the storage shed but was now caught. I was pushing him on the lack of an reference to an odor and he was struggling. He knew he was caught. He was investigating a marihuana case and entered into a storage unit with allegedly 25+ poinds in packages and he didn’t put in the report that there any odor of marihuana in the unit. Despite admitting he put all relevant information into his reports, he hadn’t done it here. He was now trying to find a way out. For about 32 questions, he danced, shucked, jived, moved, ducked and dodged. Kind of like
Q: you don’t remember an odor?
A: I’m not saying that.
Q: you didn’t put it in your report?
A: I wouldn’t in a marijuana case because it is obvious that there’d be a smell?
Q: that sounds like an assumption?
A: what is your question?
Q: when you say in a marihuana case it’s obvious that there’d be a smell, you’re assuming? You’re assuming that there was an odor of marihuana?
A: I’m assuming. Correct.
Q: you think it’s ok to assume?
Q: don’t assume please… Back to the issue… you don’t recall when walking into that room that you smelled an odor of marijuana?
A: you’re trying to trap me into a yes or a no.
Q: officer, I’m just trying to get an answer to a question…
A: I would never put it in my report, that’s why we have the canine sniff.
Q: but dogs can detect odors that humans cannot, correct?
A: yes. the canine sniffed it so I wouldn’t put it down it in my report.
Q: it’s relevant informantion, right?
A: well, the canine sniffed it.
Q: it’s relevant information given your earlier acknowledgment that where there is no odor, a person in the area might not know that marijuana is nearby?
A: I wouldn’t say that I didn’t smell it.
Q: you’ve had other cases?
A: before and after.
Q: there was no odor, that’s why it’s not in your report?
A: that’s a different question.
And so it went until the very end of my cross where he decided to jump in with both feet: he claimed to smell an odor of marihuana in the room. 32 questions later!
My last question summed it up:
Q: were you sitting in the gallery, you wouldn’t think a witness testifying similarly was credible, right?
Of course the prosecution objected but we all knew the answer. It was not credible.