Criminal Defense Q&A: At a Preliminary Hearing, Can a Police Officer Testify to What Someone Else Saw or Heard?
Question:
In criminal court, does the prosecutor’s witness in a preliminary hearing, have to have first hand knowledge? I have been held to answer by the judge in criminal court after a police officer’s testimony in prelim. During my lawyer’s cross exam, the police officer says, “You know what I didn’t see any of this …” after just giving testimony under oath as to what “he said, he saw.” “I’m just going off of what my Sgt. and colleague told me.” However, the transcripts have been edited and the court reporter failed to put the officers first statement of ” I didn’t see any of this” in transcripts. The 2nd part of his statement is in the transcript.
Does the police officer have to have first hand knowledge to give testimony is a criminal case?
Answer:
At the preliminary hearing, a police officer can testify to things that other people saw and heard.
Normally, a witness can only testify to things that he, himself, saw or heard. But when it comes to police officers during a preliminary hearing, there’s an exception.
As long as: (1) the police officer has some personal knowledge of the case; and (2) the officer has at least 5 years’ experience as a policeman, then the officer–at the preliminary hearing only–can testify to what someone else told him. (If the officer is a rookie, he can satisfy the experience requirement if he has completed a specific training course that instructs officers in the proper methods of investigating cases, reporting them, and testifying about them.) Penal Code 872(b).
So, why do police officers get an exception? Because in 1990 California voters passed Proposition 115 which, among other things, carved out this exception in an effort to streamline preliminary hearings. The proposition supported the notion that the testimony of sworn law enforcement officers is reliable. Curry v. Superior Court (2013) 217 Cal. App. 4th 580, 588.
It should be noted that this exception applies only to preliminary hearings. Should your matter proceed to trial, then the declarant–the person who actually perceived the events to which the officer testified to–would be required to testify himself.
Rather than dispute an attribution discrepancy in the preliminary transcript, it would be prudent to focus your energy on preparing for trial or resolving the case through an acceptable plea deal.
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
