CHARLES J. UNGER
This could be one of the worst decisions I've ever read. In August of
this year, the First District of the Court of Appeal held that in a
hearing pertaining to an attempt by the defense to suppress evidence
obtained during a car search, the prosecutor did not have to produce
the police officer at the hearing. The court ruled that all the
prosecutor needed to do was to provide an affidavit rather than bring
the police officer in for both direct, and more important,
cross-examination.
This ruling is terrible. The case took place in Contra Costa
County and pertained to John M. Johnson. Mr. Johnson was suspected of
stealing a safe from the home of his father. The safe was to have
contained cash, jewelry, and guns. One night, Mr. Johnson was
sleeping in his car when he was discovered by a deputy sheriff. The
sheriff indicated that he saw a baggie of marijuana in plain view
when he looked into the car.
The deputy subsequently searched the car and found items that
matched the stolen property report filed by Mr. Johnson's father. The
Sheriff's Department then obtained a search warrant permitting him to
search the vehicle and take various items into custody.
Almost any defense attorney worth his salt will, at this point in
the proceedings, file something called a Motion To Suppress Evidence.
This is a court proceeding in front of the judge during which (at
least until this decision) the officer testifies in support of the
search warrant, the search, and anything and everything else
pertaining to his contact with the individual, in this case Mr.
Johnson. It is necessary that police officers be called as witnesses
by the prosecution and then be cross-examined by the defense
attorney. The ability to cross-examine is the key here, for without
it arrest reports would be enough to convict individuals in any and
every type of case.
Fortunately, we have the jury system that allows for a trial by
jury, and permits a jury to decide whether or not proof beyond a
reasonable doubt has been met, based on the evidence put forth by
both sides in the case. It is impossible to determine the veracity
and competence of any witness from what he wrote on paper. That is
why arrest reports are generally not admitted into evidence in
criminal cases. The court requires that the officer testify and that
the attorney on the other side have the opportunity to cross-examine
him. This is one of our basic protections, as we don't ever want to
think we are living in a police state or something similar. Officers
