Public Defender Dude on “Larry Craig and Police Officer Opinion Testimony”:

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply – what did he actually do wrong – tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions… So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I’ve so often railed against – police officer opinion testimony (or, as I like to put it, "my opinion is that you’re guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It’s like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I’ve investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner."

It is highly prejudicial, and in many cases, highly meaningless.

It struck me when I read his post that PD Dude is also accurately describing so many officers’ testimony in DWI cases, as it relates to the defendant’s performance on the Field Sobriety Tests.

“In my opinion, he should have done better on these agility tests, and because he didn’t, in my opinion he’s guilty of DWI.”

DWI lawyers must point out that the officer’s opinion doesn’t factor in

  • Initial nervousness for being pulled over for a traffic violation
  • Increased nervousness now that you know you’re being investigated for DWI
  • You might be non-athletic, or perhaps even a klutz
  • Or that Field Sobriety Tests don’t measure a person’s normal abilities to do anything

As PD Dude says, you may just be able to show that the police officer’s opinion is “highly meaningless”.