Have you written in a report that a subject “appeared nervous” during a traffic stop, a field interview, a DWI checkpoint, a pat down, or other police-citizen encounter?
I put this question to many police officers when I instruct them on improving their courtroom testimony, and most reply in the affirmative. So, it’s highly probable that you just nodded and thought to yourself, “yes.”
The problem with the words “appeared nervous” is that, while you may think it’s an observation, it’s not. It’s your opinion about behaviors you observed. And defense attorneys will comb through your report looking for opinions they can use to cross examine you to show bias.
A Training Scenario
It’s fair to say there are countless ways for people to appear nervous. Some individuals get quiet when they’re nervous, others get talkative. Some shiver or tremble as if they’ve gone cold, others sweat as if they are too hot. Some blush, some go pale. There are also things other than nervousness that might explain these appearances.
Finally, some people who are genuinely innocent of wrongdoing may simply get nervous when they see a police officer’s cruiser beside the freeway. Some of those people may be sitting in the jury box when you’re questioned by a defendant’s attorney.
Consider this mock-jury scenario I use when training officers. It is a DWI case involving a defendant named Mrs. Baxter. The arresting officer wrote in his report that the suspect “appeared nervous.” He also wrote she had bloodshot eyes, a moderate odor of alcoholic beverage, and an occasional slight slurring of speech. She failed the SFSTs and blew a .12. Now the officer is on cross examination at trial.
Q: Officer, you noted in your report that my client, Mrs. Baxter, appeared nervous?
A: That’s correct.
Q: You’d never met Mrs. Baxter before this incident, had you?
A: No.
Q: You have no idea how Mrs. Baxter appears when she’s, in fact, nervous – do you?
A: No.
Q: You didn’t ask her if she was nervous, did you?
A: No.
Q: How long do you think that would have taken?
A: Not long.
Q: So your statement Mrs. Baxter “appeared nervous” was your opinion, wasn’t it?
Years ago, as a young prosecutor, I found this training scenario in a book written by defense attorneys on how to defend drunk driving cases, and it left a lasting impression. You can probably see where it ends up. At least some, if not most of the jurors know they would be nervous as soon as the officer turned on his flashing lights. The defense attorney will go on to make the point that the officer didn’t ask poor Mrs. Baxter if she was nervous — which would’ve taken a couple of seconds.
Of course, the officer didn’t ask her whether there was anything else that might be causing the behaviors that looked like nervousness. The officer formed a personal opinion (that Mrs. Baxter was nervous) and included that opinion in his report because he thought it was relevant evidence of guilt.
The officer on the stand can try and deny this was an opinion, but it was an opinion. Denying it will make the officer look evasive.
The defense attorney’s closing argument to the jury will likely include:
“Heaven help you if Officer _____ stops you, ladies and gentlemen of the jury, and he decides you’re nervous. Because in his mind that’s an indication you’re guilty and we know that has to affect the rest of his investigation.”
Yes, there might be something the prosecution can do with this on re-direct examination but why put either the prosecutor or the officer in a position of having to defend the officer’s conduct. Defense attorneys love that because it distracts the jury from who is really on trial and the evidence related to their client’s guilt.
Stick to your observations.
For example, “When I asked Mrs. Baxter if she’d been drinking, she looked away, her hand holding her license began to shake, and her bloodshot eyes filled with tears.”
Start preparing for court when you write your report.
