Criminal Investigation CH.19

Disclose to Prosecutor prior to trial

1. Information beneficial to the defendant (disclosure of exculpatory evidence). 2. Disclosure of exculpatory information or other flaws in the case. 3. Familiarity with the rules of evidence 4. Notes and reports in the courtroom. 5. Physical evidence. 6. Witnesses. 7. Communication with defense attorneys. 8. Testifying for the defendant.

Testifying in Court

Confine the testimony to known facts. Avoid expressing opinions or conclusions except when they are specifically authorized by the rules of evidence Do not volunteer information. Officers should respond only to the question asked. They should not volunteer information over and above the minimum required to answer the question posed. There are two reasons for this. Speak calmly and audibly in a natural voice. Use plain, easily understood terms. Maintain self-control.

What steps are needed to prepare for an upcoming trial?

For cases that make it to the trial stage, it is imperative that the evidence be well organized and that the investigator be prepared to give skilled courtroom testimony in the case. • Officers should cooperate fully with prosecutors in the preparation of trial testimony and other evidence. • A pretrial conference should be held between the prosecutor and all officers testifying in a given case. • Officers should provide prosecutors with all information relevant to the case and no detail should be considered too minor. Information to be disclosed should include the following: Information beneficial to the defendant (disclosure of exculpatory evidence) Information revealing flaws in the prosecution's case • Officers should be familiar with the rules of evidence. When preparing for court, one of the first steps is for officers to prepare themselves for the situation, including being prepared psychologically by strengthening feelings of confidence and self-assurance. The following steps are important before trial: • Know which courtroom you will be testifying in. • Do not discuss anything about the case in public or your conversation might be overheard. • Treat people with respect, as if they were the judge or a juror. • Do not discuss your personal life, official business, biases, prejudices, likes and dislikes, or controversial subjects in public. • Be punctual. • Dress appropriately. • Avoid contact with the defense counsel and any defense witnesses before the trial.

testimony

Given by investigator at criminal trial

Explain the importance of telling the truth when testifying.

In some cases, lies are told under oath and in many cases certain unscrupulous officers "spin" the truth in order to secure a conviction. Investigators must avoid this pitfall at all costs and avoid lying, deception and concealing evidence that is helpful to the other side. • Lying: Lies are statements that are communicated either verbally or in writing. Lying is a subset of the larger category of deception, and deception is undertaken when one intends to dupe others by communicating messages meant to mislead and meant to make the recipients believe what the agent (the person performing or committing the act) either knows or believes to be untrue. • Deception encompasses not only spoken and written statements but also any conduct that conveys a message to the listener. Deceptive conduct can range from verbal statements or writings to physical expressions such as a shoulder shrug, eye movement, or silence—any intentional action that conveys a message. • One of the areas where investigators have been known to deceive and be untruthful is the disclosure of the investigative file to the prosecution as identified under the Brady decision. Failure to do so can deprive the defense of a viable defense. The professional investigator is not in the business of securing a conviction. Rather, the "true north" for the professional investigator is to make the truth known and allow the court and trial process to take their course.

How should one properly testify on the witness stand?

Investigators must keep several principles in mind while testifying in court, including the following: • Confine the testimony to known facts. • Avoid expressing opinions or conclusions except when they are specifically authorized by the rules of evidence. • Do not volunteer information. • Speak calmly and audibly in a natural voice. • Use plain, easily understood terms. • Maintain self-control.

Identify some of the possible pitfalls that may arise when testifying in court.

It is important for officers testifying in court to not only know the case facts and circumstances but also to know what "curveballs" the defense may throw. • Be aware of questions involving distance and time and, if estimates must be made, make certain that everyone understands that the testimony is an estimate. • If asked by opposing counsel if you have spoken to the prosecutor, witness, or other officers, admit this freely if true. • If asked why you do not like the defendant, respond that you feel sorry for anyone in trouble but are required to tell the truth, and if the defendant is guilty, he or she should be convicted. • If asked whether another witness was truthful, be aware that you can only tell the truth based on your own observations and have no way of knowing what another person observed. • If asked, "Why are you here," say that you are in the courtroom in response to being served with a subpoena issued by the court clerk.

Qualifications for the expert witness

Name Occupation (and how long) Department (and how long) Specialized experience (e.g., drug enforcement and how long) Officer's training Number of training course hours Number of similar investigations in which the officer has participated Number of arrests made in this type of investigation Past experience as an expert witness (and how many court appearances)

Describe the role and qualifications of expert witnesses.

Prosecutors may locate an officer or other professional with extensive experience in a given area and qualify him or her as an expert witness. This often strengthens the prosecution's case and paves the way for testimony by other witnesses. When an expert is designated by the court, conclusions may be drawn, and the officer may give his or her personal opinion as to the facts and circumstances surrounding the case. • The expert witness is one whose knowledge exceeds the knowledge of anyone with a moderate education or experience in the field. Qualifications for the expert witness to establish when on the witness stand include the following name, occupation (and how long), specialized experience and training. • At the end of the questioning, the judge will excuse the witness. Officers must remember that the eyes of the jury are still watching and making judgments; therefore, when exiting, witnesses should refrain from staring, smiling, or showing any emotion toward anyone in the courtroom.

Explain the importance of good courtroom demeanor when testifying in court.

The testimony given by the investigator is a crucial part of any criminal trial. An experienced and knowledgeable witness can make the job of the prosecutor and subsequent conviction of the defendant much easier. Conversely, a witness who is disorganized, unkempt, and unclear in thought can inadvertently sabotage even the best of criminal cases. • Preparation: The best way for investigators to prepare for trial is not to wait for one or two days before trial to get organized but to keep the rules of evidence in mind from the beginning of the investigation through its closure (months or even years, in some cases). • Meet with the prosecutor: The investigator should be sure to meet with the prosecutor sometime before trial for the pretrial conference. The officer should check all personal reports and notes pertaining to the case and be sure that he or she has sufficient information to respond to the anticipated "who, what, when, where, why, and how" questions. • Review evidence: Before the trial, the investigator should go back over his or her list of evidence and be sure that all is accounted for and easily identifiable. The chain of custody should also be reexamined to be sure that all necessary persons who were involved with the evidence will be available if needed to testify in court. The investigator should also consider how the evidence will be transported to court and who will maintain possession of it after the court proceeding is underway. In the case of drug or forensic evidence, it is likely that the police chemist will already have custody and transport it to court. The investigator, however, might be required to locate and transport other items in evidence, such as written statements, cassettes or videotapes of transactions and statements, or photographs. All such evidence should be closely reviewed by the officer before the trial. • Because the investigator may not testify solely from notes and reports, they should be reviewed before the trial. • Credibility: Defense attorneys use numerous means to attack an officer's credibility. This is usually accomplished through attempting to demonstrate the officer's bias or that he or she is lying. The defense attorney can try to convince the jury that the officer is just trying to protect his or her conviction record by embellishing his or her answers to make the suspect look more guilty, thus resulting in a conviction. • Appearance: If for any reason it appears that the officer will be late in appearing for a court date or will be unable to appear at the specified time, he or she must notify the court as soon as possible. The notification should include the officer's name, the defendant's name, the court in which the appearance is scheduled (including the name of the presiding judge, if known), and the reason for the absence or tardiness. When absence or tardiness occurs, the matter should be reviewed by the officer's supervisor or other designated department official. If the reasons are inadequate, the matter may be referred for disciplinary action.

Describe the types of witnesses and what they may testify in a courtroom.

There are a number of different types of witnesses who may provide information about the nature of an incident: • Fact witness: Has personal knowledge of events pertaining to a case and can only testify to things he or she personally saw • Expert witness: Is permitted to offer opinions that may assist the judge or jury in understanding specialized technical knowledge that would otherwise be beyond their expertise • Police officer: Straddles the domains of fact and expert witnesses. May be asked about what he/ she and/or the defendant did (like a fact witness) and then be asked to state an opinion (like an expert witness)

Brady decision.

Under Brady, evidence affecting the credibility of the police officer as a witness may be exculpatory evidence and should be given to the defense during discovery. Indeed, evidence that the officer has had in his personnel file a sustained finding of untruthfulness is clearly exculpatory to the defense.

Exculpatory Evidence

any information having a tendency to clear a person of guilt or blame

lie

any intentionally deceptive stated message

Deception

encompasses not only spoken and written statements but also any conduct that conveys a message to the listener.

Police officers normally testify as lay witnesses,

meaning that they should state only facts and not express opinions or engage in conjecture or speculation.

Brady v. Maryland

that the defense has the right to examine all evidence that may be of an exculpatory nature.

The prosecutors are in the best position

to judge the strength of the case and the probability of conviction, and officers should be sufficiently well-versed in the rules of evidence and the realities of the criminal justice system to accept the prosecutor's decision without resentment or recrimination. Blaming the prosecutor for the shortcomings of the judicial process is counterproductive and should be avoided.