- Associated Press - Wednesday, June 1, 2016

ALBANY, N.Y. (AP) - Defense attorneys urged New York’s highest court on Wednesday to allow questioning police officers at criminal trials about lawsuits that allege they lied, fabricated evidence or made false arrests in other cases.

The Court of Appeals is considering three cases where judges’ rulings against such questions were upheld by a midlevel court in Manhattan. They involved Manhattan drug arrests in 2011 and 2012 and a Bronx gun possession arrest in 2008.

The officers in each of the cases separately faced federal civil rights lawsuits, which the defense lawyers argue provided sufficient good-faith basis for questioning past misbehavior that would undermine their testimony. Trial judges in each case prohibited that cross-examination.

“The court erred in concluding the lawsuits had no relevance to the officers’ credibility,” said attorney Claudia Flores. She represented Charles Smith, arrested by narcotics officers who said they saw him sell a bag of crack cocaine on a Manhattan street corner. Smith’s trial lawyer was barred by the judge from cross-examining them about the suits alleging they fabricated drug sale charges in prior cases.

Prosecutors countered that the prohibited defense questions in all three cases were flawed and insufficiently specific, essentially generic questions about whether the officers had been sued or participated in false arrests. They also said judges have discretion to weigh the probative value of questions against their possible prejudicial effect.

Manhattan Assistant District Attorney Patricia Curran said Smith’s trial lawyer told the judge he wanted to talk about settled and pending lawsuits. “He needed to have said he wanted to ask about specific prior acts of misconduct by these officers, and he needed to show that in the federal complaints that he references that were never marked in exhibits that he could show the two officers … were actually charged with and there were allegations of specific misconduct by them.”

The seven judges questioned lawyers in all three cases to describe exactly how defense lawyers have to frame their questions and whether the trial judges ruled against the their initial attempts, effectively preventing them from asking about underlying facts.

Judge Eugene Pigott Jr. disagreed with the contention that lawyers can’t simply ask a witness about a lawsuit as an approach. “There is not some big red light in courts: You can never ask has someone been sued,” he said.

In court papers, the defense lawyers noted midlevel courts in Brooklyn and Albany ruled allegations in civil rights suits may be used in cross-examining police when there’s a good-faith basis.

The Court of Appeals is expected to rule next month.

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