Issue before the Court: Whether a defendant has a right to cross-examine police witnesses about having lied to a federal prosecutor in an unrelated case and the fact that a federal judge has found their testimony to be incredible.

 

Held: In a unanimous decision, with an opinion written by Judge Fahey, the Court held that the trial court abused its discretion when it did not permit defense counsel to ask a police officer whether he had previously lied to a federal prosecutor about his involvement in a ticket-fixing scheme when he was preparing to testify in a federal prosecution, and also abused its discretion when it did not allow the defense to question two police witnesses about the fact that two federal judges had found them incredible in unrelated suppression hearings. 

 

CAL Observes: Protecting a criminal defendant’s right to cross-examine the People’s witnesses, even police officers, may be the only area of law favorable to defendants upon which the full court agrees. 

 

People v. Smith, 27 N.Y.3d 652 (2016) had unanimously held that a defendant has a right to cross-examine police witnesses about their alleged prior misconduct underlying civil lawsuits brought against them in their capacity as police officers, if that misconduct was relevant to the proceedings for which defendant was on trial. Counsel has a right to cross-examine about the underlying facts of a lawsuit even if there is no finding or concession of responsibility. Smith articulated a three-step rule for assessing the appropriateness of such questioning: 

 

First, counsel must present a good faith basis for inquiring, namely, the [proceeding] relied upon; second, specific allegations that are relevant to the credibility of the law enforcement witness must be identified; and third, the trial judge exercises discretion in assessing whether inquiry into such allegations would confuse or mislead the jury, or create a substantial risk of undue prejudice to the parties. Id. at 662. 

 

In Rouse, the Court held that the Smith protocol was not limited to allegations of misconduct underlying civil lawsuits, but extended to other areas that reflected on the officer’s credibility. First, the Court found that, because defense counsel had a good-faith basis to ask the police witness about lies he’d told a federal prosecutor, it was an abuse of discretion to forbid that questioning, because the officer’s willingness to lie to a federal prosecutor was relevant to the credibility of his testimony in this case. Second, the Court found that it was also an abuse of discretion to forbid defense counsel from questioning two police witnesses about the fact that they had been found incredible by two federal judges at suppression hearings. Under the Smith protocol, defense counsel had a good faith basis for the questions, the federal judge’s credibility determinations were probative of the officer’s credibility in the current prosecution, and there was no danger that the jury would view the prior credibility determinations as binding, because the jury could be properly instructed. 

 

The Court’s unanimity in Rouse signals that it may be open to other attacks on police credibility. In light of the new information about police misconduct publicly available, opportunities exist to extend Rouse. If, for example, an officer has been found incredible at NYPD disciplinary proceedings or at CCRB proceedings, Rouse appears to guarantee a right to effective cross-examination.