1. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The Investigator in Court Chapter 18

2. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Overview The Nature of Criminal Proceedings The Nature of Criminal Proceedings Review Questions Review Questions Opportunity for Student Questions Opportunity for Student Questions

3. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Learning Objectives Understand the proposes and procedures of criminal trials Understand the proposes and procedures of criminal trials Describe the importance of police testimony Describe the importance of police testimony Discuss the importance of pretrial preparation Discuss the importance of pretrial preparation Describe the aspects of police testimony that are likely to receive special scrutiny by defense and prosecuting attorneys during cross examination Describe the aspects of police testimony that are likely to receive special scrutiny by defense and prosecuting attorneys during cross examination Describe the manner in which investigators should conduct themselves while testifying Describe the manner in which investigators should conduct themselves while testifying

4. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The U.S. Court System The U.S. system of determining truth is known as the accusatorial procedure The U.S. system of determining truth is known as the accusatorial procedure Innocence is assumed until proven otherwise Innocence is assumed until proven otherwise The police assist the court by providing information that can help a judge or jury make the determination of the facts The police assist the court by providing information that can help a judge or jury make the determination of the facts Police testimony is required: Police testimony is required: –In criminal trials –During pretrial hearings –In civil cases The prosecutor's role is very important during the investigation and continues through the judicial process The prosecutor's role is very important during the investigation and continues through the judicial process

5. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The Nature of Criminal Proceedings Criminal law and procedure is a body of practices or rules that is designed to protect the accused and the interests of society Criminal law and procedure is a body of practices or rules that is designed to protect the accused and the interests of society The proceedings include: The proceedings include: –Conferences (normally private) Between the prosecutor and officers Between the prosecutor and officers Between defense attorney and defendant Between defense attorney and defendant Between prosecutor and defense attorney (sometimes the judge) Between prosecutor and defense attorney (sometimes the judge) –Hearings (numerous!) –Trial –Appeals The prosecutorial decision is based upon many factors The prosecutorial decision is based upon many factors

6. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The Charging Decision The decision to proceed with the prosecution is made by the prosecuting attorney after: The decision to proceed with the prosecution is made by the prosecuting attorney after: –An informal conference with investigators –A review of all police reports –A review of all physical evidence and exhibits –Careful consideration is given to: Statutes that cover the alleged criminal activity Statutes that cover the alleged criminal activity Prosecutorial priorities Prosecutorial priorities Strengths and weaknesses of the case Strengths and weaknesses of the case Community awareness and expectations (remember, most prosecutors are elected) Community awareness and expectations (remember, most prosecutors are elected)

7. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 What Are the Charges? The prosecutor receives a recommendation from the investigating officer regarding a potential charge The prosecutor receives a recommendation from the investigating officer regarding a potential charge The prosecutor has wide discretion in this area and there are several options including: The prosecutor has wide discretion in this area and there are several options including: –Charge the defendant as recommended by the police –Charge with a different statute –Return the case to the investigator for further investigation –Decline prosecution (lack of prosecutorial merit) –Enter into a plea agreement with the defendant –Offer the accused deferred prosecution Many times, the prosecutor will seek the investigator’s input regarding the charging decision but it is, in the end, the prosecutor’s decision Many times, the prosecutor will seek the investigator’s input regarding the charging decision but it is, in the end, the prosecutor’s decision

8. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The Arraignment Typically, a short hearing Typically, a short hearing Essential facts are presented to the court Essential facts are presented to the court Charges are read to the accused Charges are read to the accused The judge informs the accused of legal rights The judge informs the accused of legal rights In some states, officers briefly testify In some states, officers briefly testify After this initial appearance, the formal accusation of the offense is presented in the form of an information or an indictment After this initial appearance, the formal accusation of the offense is presented in the form of an information or an indictment

9. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 The Defendant’s Plea– Four Choices Guilty Guilty –Admits to the charge –The defendant must waive constitutional rights to trial, to face accusers, the right of cross examination, to force the prosecution to prove the case beyond a reasonable doubt –Bypasses the trial process Not guilty Not guilty Nolo contendere (no contest) Nolo contendere (no contest) –Defendant does NOT admit guilt –Defendant will be found guilty –This plea cannot be used against the defendant in a subsequent civil trial –This plea is not available in all states The defendant may also stand mute The defendant may also stand mute –The judge will enter a plea of not guilty for the defendant

10. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Judge or Jury The defendant has the right to either a court (judge) or jury trial The defendant has the right to either a court (judge) or jury trial –The judge renders a verdict in a court trial –A jury consisting of (normally) 12 people render the verdict in a jury trial The judge or jury are considered the fact- finders The judge or jury are considered the fact- finders –They determine what happened (legally)

11. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Sample Trial Procedures Initial appearance (bail set) Initial appearance (bail set) Arraignment (plea entered, information read or waived by defendant) Arraignment (plea entered, information read or waived by defendant) Preliminary hearing (required for a finding of probable cause–required for all felony cases) Preliminary hearing (required for a finding of probable cause–required for all felony cases) Pre-trial hearings are conducted, usually initiated by the defense for: Pre-trial hearings are conducted, usually initiated by the defense for: –Motions to suppress evidence –Motion to dismiss specific or all charges

12. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Sample Trial Procedures (continued) In some jurisdictions, the judge will set a date for a pre-trial conference to facilitate plea negotiations In some jurisdictions, the judge will set a date for a pre-trial conference to facilitate plea negotiations Trial begins Trial begins Jury selection Jury selection Opening statements Opening statements Prosecution presents case Prosecution presents case Prosecution rests Prosecution rests Defense normally moves to dismiss the case at this point (rarely successful) Defense normally moves to dismiss the case at this point (rarely successful)

13. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Sample Trial Procedures (continued) Defense presents case Defense presents case Defense rests Defense rests Rebuttal phase (both sides have the opportunity to present new witnesses or evidence) Rebuttal phase (both sides have the opportunity to present new witnesses or evidence) Closing arguments Closing arguments

14. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Sample Trial Procedures (continued) Jury instructions Jury instructions Jury deliberation Jury deliberation Trial concluded with jury decision Trial concluded with jury decision Proceedings continue with sentencing process if found guilty Proceedings continue with sentencing process if found guilty Pre-sentence investigation is normally ordered by the judge in all felony cases Pre-sentence investigation is normally ordered by the judge in all felony cases Sentencing Sentencing Appeals process begins here Appeals process begins here

15. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Direct Examination Initial questioning by the attorney who called the witness is called direct examination Initial questioning by the attorney who called the witness is called direct examination The prosecution usually will call: The prosecution usually will call: –Police officers Essential to the prosecution’s case Essential to the prosecution’s case Often are eyewitnesses Often are eyewitnesses Provide information supportive to the testimony of other witnesses and to introduce physical evidence Provide information supportive to the testimony of other witnesses and to introduce physical evidence –Witnesses –The victim

16. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Cross Examination Questioning following direct examination by the opposing attorney is called cross examination Questioning following direct examination by the opposing attorney is called cross examination Re-examines information revealed during direct questioning Re-examines information revealed during direct questioning Enables the opposing attorney to challenge a witness’s: Enables the opposing attorney to challenge a witness’s: –Veracity –Accuracy This round of questioning may be followed by re-direct by the original attorney and then again, the opposing counsel may complete the questioning by re-cross This round of questioning may be followed by re-direct by the original attorney and then again, the opposing counsel may complete the questioning by re-cross

17. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Pretrial Preparation Preparation for the trial begins from the moment the police respond to the crime and continues throughout the investigation Preparation for the trial begins from the moment the police respond to the crime and continues throughout the investigation The trial, not the arrest, is the culmination of the investigation The trial, not the arrest, is the culmination of the investigation Pretrial preparations lay the foundation for sound courtroom testimony Pretrial preparations lay the foundation for sound courtroom testimony After being notified of a hearing or trial by the prosecutor, the officer should: After being notified of a hearing or trial by the prosecutor, the officer should: –Review all reports and notes –Examine all evidence –Revisit the crime scene –Confer with the prosecuting attorney –Study for testimony as if for an exam!

18. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Pretrial Conference This is an informal meeting with the investigator(s) and the prosecuting attorney This is an informal meeting with the investigator(s) and the prosecuting attorney The purpose of the conference is to: The purpose of the conference is to: –Exchange information –Answer questions –Help the prosecuting attorney decide whether to proceed with the case –Prepare the officers for their testimony The officer should bring all pertinent reports to the conference The officer should bring all pertinent reports to the conference All matters that need clarification will be addressed in detail All matters that need clarification will be addressed in detail

19. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Clarifying the Officer’s Report – Three Main Areas Initial probable cause Initial probable cause –Was there PC to arrest? To search the vehicle? Constitutional protections Constitutional protections –When were Miranda warnings given? –Where other constitutional rights protected? Search and seizure Search and seizure Use of force Use of force Right to attorney Right to attorney Questioning/interrogation methods–confession Questioning/interrogation methods–confession Evidence gathering Evidence gathering –Was evidence gathered properly (chain of custody maintained) –Was evidence marked –Who tested the evidence? Are they qualified?

20. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Testifying in Court Testimony must be: Testimony must be: –Relevant –Material –Competent Defense attorneys often request that investigators not listen to other witnesses (a motion to sequester the prosecuting witnesses ̶ including police officers– is often granted) Defense attorneys often request that investigators not listen to other witnesses (a motion to sequester the prosecuting witnesses ̶ including police officers– is often granted) The court will allow a witness to review documents during testimony (to refresh memory) The court will allow a witness to review documents during testimony (to refresh memory)

21. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Preparing to Testify The officer must be prepared to testify The officer must be prepared to testify –Psychologically –Physically All witnesses are nervous to some degree, including police officers All witnesses are nervous to some degree, including police officers The officer should attempt to create a favorable impression The officer should attempt to create a favorable impression –Personal appearance –Do not converse with others in the courtroom Never with the defense counsel Never with the defense counsel Never with witnesses (but do be polite) Never with witnesses (but do be polite) Don’t talk with other officers when court is in session Don’t talk with other officers when court is in session

22. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 On the Witness Stand, the Officer Should… Be confident Be confident Display a serious, interested attitude Display a serious, interested attitude Pause briefly prior to answering questions Pause briefly prior to answering questions –Allows the prosecutor to object –Gives the officer time to answer the question thoughtfully –Allows the officer some control over the pace of cross- examination Avoid slang expressions, humor, and non-verbal communication Avoid slang expressions, humor, and non-verbal communication Answer in a clear, firm voice Answer in a clear, firm voice

23. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 On the Witness Stand, the Officer Should… (continued) Be prepared for a vigorous defense cross-examination Be prepared for a vigorous defense cross-examination –The purpose may be to discredit either the overall credibility of the officer or specific information –Some attorneys focus on the officer personally –Discrediting a previous statement of the officer is much more common –Defense attorney tactics include: Rapid fire questions Rapid fire questions Purposely mispronouncing the officer’s name Purposely mispronouncing the officer’s name Purposely misquoting the officer Purposely misquoting the officer Asking presumptive questions like: ‘Why did you search the trunk before you obtained permission?’ when the officer did in fact ask first Asking presumptive questions like: ‘Why did you search the trunk before you obtained permission?’ when the officer did in fact ask first Answer all questions honestly Answer all questions honestly State, “I don’t know,” if the answer to the question is unknown State, “I don’t know,” if the answer to the question is unknown Answer closed-ended questions with a simple yes or no Answer closed-ended questions with a simple yes or no

24. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Testifying Dos Do Do –Maintain a polite professional demeanor to both the prosecutor and the defense attorney –Speak clearly and loudly –Assume proper body positioning –Be calm –Testify from memory –Listen to the question before answering –Be yourself –Pause briefly before answering –Study for your testimony

25. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Testifying Don’ts Don’t Don’t –Refuse to answer a question –Ask the judge to censure the defense –Use notes (if possible) –Anticipate the question, but listen to the entire question –Guess or speculate –Argue –Attempt to “act” –Chew gum –Drink during testimony –Use humor or try to funny or “cute” –Qualify answers (“to the best of my knowledge”)

26. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Review Questions 1. What is the proposes of criminal trials? 2. Describe the major steps in the criminal judicial process. 3. Describe the importance of police testimony. 4. How should a officer prepare for testimony? 5. Explain the importance of a pretrial conference between officers and the prosecuting attorney. 6. Describe the manner in which investigators should conduct themselves while testifying. 7. What should officers avoid doing when testifying?

27. Criminal Investigation, 7 th Edition By James N. Gilbert PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 Student Questions