The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An interesting decision from the Arizona Court of Appeals last Thursday, in State v. Bravo:
The State challenges the new trial the superior court granted to Juan Carlos Bravo, John Carmen Bravo-Martinez, Jaime Bravo Martinez, and Nestor Manuel Ponciano (collectively, "the Defendants") after the jury's verdict. For the reasons that follow, we affirm….
A complaint about music being played too loudly at a late-night backyard party in west Phoenix escalated into a citywide police call for help resulting in the deployment of seventy officers, and the arrest of five people, all relatives, on charges of riot; aggravated assault [of police officers] for touching with intent to injure, insult or provoke; and resisting arrest….
Officer M.L. and several others, who had responded to his call for backup, … entered the backyard, where several of the thirty to forty attendees yelled and cursed at the officers, told them they had no right to be there, and refused to comply with commands to sit down or disperse. In the resulting chaos, the four Defendants pushed various officers or threw items at them, resulting in their arrest and being charged….
B. Police Officers as Victims
The superior court found that the Defendants' due process rights were violated by the "surprise nature of certain testimony" from the police-officer victims. Specifically, Defendants claimed the police-officer victims authored reports that only discussed what they did and saw, but not the actions of the other officers. Moreover, the police-officer victims refused to participate in defense interviews.
In its ruling, the court noted that "there was a significant amount of relevant information testified to by various officers that was not included in police reports, despite being central to the [S]tate's theory of the case." And the court expressed concern that "the exercise of victims' rights in this matter served to deny each defendant a fair trial."
Police officers can be victims under the Victims' Bill of Rights. See Ariz. Const. art. 2, § 2.1. A victim is defined as "a person against whom the criminal offense has been committed…." Ariz. Const. art. 2, § 2.1(C). And like other victims, the officer-victims had the right to the protections of the Victims' Bill of Rights, including the right to refuse defense interviews or discovery requests. Ariz. Const. art. 2, § 2.1(5). Although they have certain rights as victims, those rights may, under certain circumstances, be required to yield to a defendant's due process rights. See, e.g., State ex rel. Romley v. Superior Court (Roper), 172 Ariz. 232 (App.1992) (holding that if medical records are found to be exculpatory and essential to present defense case or impeach the victim, due process requires their production).
Defendants have no constitutional right to pretrial discovery in a criminal case, except when the evidence is both exculpatory and material. Rule 15.1 governs disclosure by the State and requires the prosecutor to disclose the police reports in his or her possession or control. However, Rule 15.1 does not regulate what the police officers write or include in the reports.
In fact, police officers are not required to prepare reports, much less reports that cover every aspect of their anticipated testimony. The purpose of the police report is to outline what happened in order to help the prosecutors determine what charges to file. Once the charges are filed, the report is provided to the defense to understand how the police perceived the events. The defense can also use the report to attempt to impeach the officers during trial if their testimony is inconsistent with any police report. And, if need be, the report can also be used by the officer at trial to refresh his or her memory given that the report is written soon after the events and any trial takes place months or years later.
Under the circumstances presented here, the Defendants' due process rights were not violated because they could not interview the police-officer victims. And the record fails to demonstrate that any of the undisclosed evidence in this case was material or exculpatory.
During trial, and to address the fact that the police-officer victims did not provide defense interviews, the court gave the Defendants "expansive cross examination" of the officer-victims to address discrepancies between what they had included and had not included in their incident reports. As a result, the Defendants, during cross-examination, were able to use many omissions or misstatements in the reports of the officer-victims to question their credibility, and to present a complete defense. Consequently, having reviewed the record, the Defendants' due process rights were not violated nor were they denied a fair trial because the police reports did not cover all aspects of the police-officer victims' anticipated testimony or because the officer-victims did not agree to defense interviews.
C. Argument that Cross-Examination was Harassment
In reviewing the record, we find another issue concerning victims' rights that the court did not address: the prosecutor's use of the victims' rights as a sword during re-direct examination. During re-direct examination of Officer A.O., the prosecutor implied that defense counsel, by the extensive cross-examination, had violated the officers' rights, as victims, to be free from intimidation and harassment. The Defendants objected moved for a mistrial. After finding that the prosecutor's conduct had been improper, the court concluded that a mistrial was not warranted because the objection was immediately raised and the jury removed from the courtroom, preventing any unfair prejudice.
Victims are to be "treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process." Ariz. Const. art. 2, § 2.1(A)(1). The officer-victims, however, are not typical crime victims.
Although police officers may become crime victims in the course of carrying out their duty, they also have an obligation, as part of their duty, to observe and collect evidence and then to testify about it, if required. And as a witness to the events, they can be cross-examined, even vigorously, about what they saw, what they heard, and what they did, as well as other relevant inquiry in an attempt to get all the relevant information to the jury for its consideration.
Here, although the court sustained the objection to the prosecutor's statements, the implication that the cross-examination was improper and violated victims' rights was both unprofessional and misstated the law—if an officer-victim refuses to be interviewed by the defense, the defense can cross-examine the officer-victim about his or her direct testimony and anything else that is relevant, and that touches on the person's credibility and other factors, which may create reasonable doubt.
If a lawyer thinks a question or some part of the cross-examination is problematic, an objection can be made, and the court will resolve the objection. But, a prosecutor, in seeking justice, should never imply that the cross-examination of a police officer, even as a victim, was improper because of the impact it can have on the jury.
Seems right to me. Of course, non-police-officer victims must also be subject to reasonable cross-examination; and courts may protect all witnesses from "intimidation, harassment, or abuse," in the form of excessive cross-examination—a judgment call, of course, but one that courts must routinely make. But it's good that the court recognizes that, whatever modest limits judges may impose on cross-examination of ordinary victims, broad cross-examination of police officer victims is especially appropriate.