Witness Chicken (The Police Version)

Maybe your client is guilty. Maybe it will be easy for the State to prove that your client is guilty. That is, if they can get their witnesses to show up.

There are all sorts of reasons that defense lawyers set cases for hearings and trials, not the least of which is that they expect(well… hope?) that a judge will suppress some or all of the evidence, or that a jury will find their client not guilty.

Occasionally a client will even volunteer this as the solution to their problems, “What are the chances that so-and-so won’t show up, and my case will be dismissed?”

For now, I’ll ignore the ethical issues that answering that question raises, and focus on one small aspect of it. The answer depends greatly on whether or not the witness against your client is a police officer or a civilian. The chances of winning witness chicken when the only folks the State needs wear a badge and a gun are substantially less than if they don’t. Part of every cop’s job description includes “professional witness,” and they even take classes to learn how to do it.

So what are the chances that an officer won’t show up to testify in a pretrial suppression hearing? Usually pretty slight. But a cynic might say there are other factors to consider, such as… what your client does for a living. Is the answer different if your client is also part of the thin blue line?

From “Texas Officer Catches Break in DWI Case; Arresting officer is no-show for court”:

An Hidalgo County judge killed a McAllen policeman's criminal case after one of the defendant's fellow officers failed to appear in court and testify against him, court records state.

Judge Jay Palacios of Hidalgo County Court-at-law No. 2 dealt a "fatal" blow to the prosecution's case, Hidalgo County District Attorney Rene Guerra said, when he granted a motion to suppress evidence in Officer Alex Alvarez's pending case on a charge of driving while intoxicated.

No witness, evidence suppressed, case closed. Until the newspaper called, and the D.A. had to come up with an explanation.

District Attorney Guerra said he learned Wednesday that the case was set for dismissal when a Monitor reporter contacted him about the matter. Guerra said he would ask Palacios to reconsider his decision to suppress the evidence in the case.

"Legally, I don't know if he can reconsider it," the district attorney said. "I don't know until I try."

But why the arresting officer missed the court date remains unclear.

Did the state even ask for a continuance? According to the article, “McAllen's Police Chief Rodriguez said he believed the officer was hospitalized.” In Austin, prosecutors will ask for a continuance at a first setting, even if they have no idea why their witness isn’t there, and it will usually be granted. One time any way.

Did that happen in this case? And if it regularly happens in that court, but didn’t this time, what made this case different from any other?

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Dustin Scott - February 27, 2010 3:59 PM

Just goes to show Police Brutality, and especially where I live in sulphur springs, TX. I pissed an officer off because I mouthed back when he started cursing at me, it was my brother why he was called over in the first place. well, 3 officers wait outside my house 2 1/2 hours and I decided to get a V8 at the store down the street where SGT. Mitch Griggs continually called my mother to have her persuade me to leave the house, he pulls up says my name I put my hands in the air and say what at which he tases me for no reason , other than me pissing him off earlier well, now i was in his territory, he and 2 other officers continue to taze me (into Convulsions) might I add as they laugh and take their sweet time taking me to the hospital he called my mother and said I was tased because I refused a Breathylizer exam which is hard to do if not only you are 1. Given the opportunity, 2. you dont tase people for refusing a breathalizer, and 3 , the 3 sentence report did not mentiom me being held against my will for a P.I- The next day I was sent to a damn mental hospital in far south texas on a 10- day commitment which was that Friday, when the judge looks and laugh s at it and almost imminentle releases me because mind you there on friday pc meeting on monday, he apologized for what happened to me and hands me a card and says we are tired of these small town cops thinking they can do whatever they want so sue those Bastards for everything they are worth.. I am tired of waiting on my lawyer who I fear is in with them.... Now to the best part, 1 1/2 months later same scenario almost, brother raising hell they and sgt. mitch griggs come but yet again nothing domestic violence just me talking and he yelling. they leave and my brother, a very assaultive person beats me unconciouss with his bare fists, I could not have fought back if I had tried, I WAS KNOCKED UNCONCIOUSS AND BEATEN. so when i awake, much to my suprise my favirote corrupt police officer and I go to jail for domestic violence, 3 witnesses can attest to this and enough medical evidence to climb a mountain on both cases, undisclosed/ taser/ boot marks to the head the first time......... 2nd fv assault forementioned.. call and try on several days to file complaints and was basically laughed at, they allowed my mother to see the tasering video, NOT ME/ the VICTIM because" I am threatning legal action, which I found out was BULLSHIT but from what my mom said it made her cry, and thes fucking bastards through the years you can never find their records b/c they are shoved under the fucking carpet.... HOW DO I KNOW THIS/ I AM A FORMER POLICE OFFICER NOT THERE, but i know you dont just call someones name and tase them, no provocation, and by the way being a danger to myself or others, how? I was walking into a nearby store on a rainy day, policed report says, in 3 sentences: I TRIPPED" REALLY A CAUSE FOR all this and more, please someone, i have something else and more, plus a dozen witnesses to this crime and corruption on the street

Guy Seymore - September 14, 2010 5:03 PM

A lot of passion behind this subject matter. Thanks for the post and I'll be keeping an eye on this blog.


MyTexasDefenseLawyer - December 10, 2010 2:10 PM

Sometimes, getting the witness to show is a battle, but its not something a defendant should ever count on.

Jason Chan - February 22, 2011 8:50 PM

There is always a risk to put a case on for trial to see if the witness will show up. However, if the witness doesn't show up then it is usually very helpful in disposing of the case.

Texas Drivers Safety Course - November 16, 2011 4:20 AM

I had been seen a handful of cases which are dismissed or closed due to no witness or insufficient evidences, most of this type of cases judge give one or more chances to investigate and produce the witness if they failed to do so at last that case has been closed.

Gus McDonald - Georgia DUI attorney - January 10, 2012 4:32 PM

This is good information for DUI lawyers to be aware of. Officers will normally show up more often than not, but there are certainly instances in which they will not show. It’s best to be as aware as possible of every element of the case. Make sure your client has told you everything they know, and do your best to go into court as prepared as possible, no matter what the circumstances.

Yorba Linda DUI Attorney - March 6, 2013 2:14 PM

I agree with the author, that your chances of an officer not showing up are slim to none... well less then slim to none. Most officers get double-time or at least time and a half for showing up to court to testify, so there is a definite incentive for them.

Even if you request a trial by declaration, while the officer doesn't get extra pay to write his testimony, he is allowed to write it while on duty.

Bottom-line prepare for your citing/arresting officer to show up to court, because he/she most likely will.

Personal Injury Lawyer in Austin - March 9, 2014 5:32 AM

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