Courtroom Testimony
CJUS 201
Criminal Investigation
Part 13
Court
1. Successful law enforcement
- aggressive detection / investigation
- must respond appropriately in court
a. Reveal / articulate for public
- professional skills/training/integrity
- won/lost based on officer testimony
(1) Cross-examination
- centers on quality / credibility /
professionalism
Court
(2) Professionalism reflected
- officer’s word accepted beyond
reasonable doubt
b. Two themes dominate:
- objectivity / professionalism
(1) Objectivity
- legal system adversary
- lawyers are advocates
- witnesses: honest / objective to
- display bias: discredited
Court
(2) Never lie
- moral consequences too high
- even insignificant detail
- destroy credibility
- veracity precedes into court
(3) Don’t display bias
- against judge / defense
- do not sit with prosecutor
- do not sit directly behind
- leave quietly / no sign of feelings
Court
- do not stop / discuss case
- in court / do not vent emotions
- sole mission: express truth
(4) When testifying
- address trier of fact
- ones to be concerned about
- explaining diagram / evidence
- establish eye contact / rapport
(5) Answer honestly / fairly
Court
- make mistake: admit it
- detail favors defense: admit it
- enhance credibility
c. Professionalism
- not only speak the truth
- show by demeanor / competence
(1) Appearance
- impression: physical appearance
Court
- dress carefully
- neat / clean / conservative
- courtroom is a special place
(a) Leave coat / hat behind
(b) Gun not showing / clothes in
order before taking stand
(2) Promptness
- be early / necessary evidence
Court
(3) Act professional
- even before court begins
- judge / jury may be watching
- poor actions / remarks
(a) Discuss in conference room
(b) Do not laugh/joke with others
(c) Do not discuss the case with
defense counsel
Court
(4) Taking the stand
- quiet / confident manner
- before oath: complete stop /
pause / accept oath
- act like oath means something
(5) Do not assume air of importance
- be natural / open as possible
- sit erect / feet flat on floor
- coat unbuttoned
- hands on thighs / arm of chair
Court
- pay attention to body language
- expressed by posture/ manners
(a) Do not place hand over mouth
while speaking
(b) Maintain eye contact with jury
/ judge
(c) Do not cross arms / legs
- or clench fists
Court
(d) Do not shift around in chair
(e) Speak in a loud / clear voice
(f) Speak at same rate of speed
- in the same manner
- in response to all questions
(g) Avoid police vernacular
- talk in plain terms
Court
(6) Remain objective at all times
(a) Do not become argumentative
- nor over-confident
(b) Do not be drawn into position
of fencing with defense
- remember what you said
(c) Listen carefully to questions
- do not volunteer information
Court
(d) Question contains figures /
long list of names / etc.
- make sure you agree
- before you answer
(e) Cannot answer accurately with
a “yes” or “no”
- advise the court
(f) If a particular question hurts
- no not show it
Court
2. Specific techniques of testifying
a. Use / overuse of notes
- thoroughly review before trial
- testify w/o referring to any reports
- except to recall specific details
- times / addresses / license numbers
(1) Since notes not needed
- not be taken to stand
- details: report handed to you
Court
b. Using a writing to refresh recollection
- Pros: “Do you have a completely
independent recollection of this
incident?”
- Off: “No, I do not.”
- Pros: “Did you make a report
concerning this incident?”
- Off: “Yes, I did.”
- Pros. “Was the report written
accurately?”
- Off: “Yes.”
Court
- Pros: “If you could refer to that
report would it refresh your
recollection as to information I
asked about a minute ago?”
- Off: “Yes, it would.”
c. Using a writing in place of recollection
-Pros: Do you have a completely
independent recollection of this
incident?”
Court
- Off: “No, I do not.”
- Pros: “Did you prepare a report
concerning this incident?”
- Off: “Yes.”
- Pros: “Did you base your report
upon your own observations
and quote only the direct
conversations you directly heard”
- Off: “Yes.”
- Pros: “Was it written during or
shortly after the incident while it
Court
was still fresh in your mind?”
- Off: “Yes.”
d. A good narrative
- when asked a detailed question
- give an expansive answer
e. A bad narrative
- only answer questions fully
- do not try to fill-in with opinions
- let prosecutor draw out details
Court
f. The pick-up
- establish rapport with prosecutor
- pick-up on his/her cue questions
- prosecutor should pick-up on officer
cues
3. Communicating with the jury
a. Always be polite
- speak to jury / maintain eye contact
- clear / concise as if telling a story
Court
b. If an objection
- stop speaking immediately
- do not continue until judge rules
- sustained / overruled
c. Be prepared to be an artist
- jurors learn better by sight
- with “poor” artistry the jury will
understand
4. Courtroom testimony
Testimony
a. Why testimony necessary?
- rules of hearsay
- defendant’s right to confront
- defendant’s right to cross-examine
- need to create a record
b. Stages of officer testimony
(1) Before filing charges
- warrant for arrest / search
- non-adversarial
Testimony
(2) Preliminary hearing
- setting bail
- may or may not be adversarial
(3) Motion hearing
- to suppress evidence
- to dismiss case
(4) Trial
- by judge or jury
- adversarial
Testimony
(5) Probation hearing
- adversarial
- hearsay admissible
(6) DOL hearing
- adversarial (defense attorney)
- hearsay admissible
(7) Forfeiture hearing
- adversarial administrative
- less formal / hearing examiner
Self-Incrimination
1. Privilege against self-incrimination
a. Statements obtained from suspects
- investigation / prosecution
(1) Raise serious questions
- fairness / accuracy
- oldest dilemma
(2) Most serious crimes
- no conclusive evidence
Self-Incrimination
- circumstantial evidence
- refuses to talk / prohibited
(3) Constitutional law
- established criminal procedures
- apply limits on self-incrimination
- not abolish practice
(4) Three doctrines apply:
(a) Due process: 5th / 14th Amend
Self-Incrimination
(b) Privilege against self-incrim.
- 5th Amendment
(c) Right to counsel
- 6th Amendment
b. Cases impacting suspect statements:
- Brown to Miranda (1936 – 1966)
- Supreme Ct: 30 confession cases
(1) 1936: Brown vs. Mississippi
Self-Incrimination
- Court: first state confession
(a) Obtained through torture
- violates 14th due process
- began long legal tradition
(2) 1942: moving from jail to jail
- cannot be contacted by family
(3) 1944: Ashcroft vs. Tennessee
- 36 hrs. straight questioning
Self-Incrimination
(4) 1945: keeping suspect naked
(5) 1949: holding for 5 days
- without taking before judge
- subjected to relay questioning
(6) 1954: psychiatrist to help suspect
- confesses to psychiatrist
(7) 1958: confession save from lynch
mob
Self-Incrimination
(8) Used “truth serum” on suspect
(9) Parental rights terminated if no
confession
b. Court: several theories
- uncivilized standards not tolerated
(1) Undue pressure
-not simply torture
- used unfairly / trained officers
Self-Incrimination
- must follow ‘rule of law’
- confessions cannot be forced
c. Right to counsel
- 1964: Escobedo vs. Illinois
(1) Broke new ground
- voluntary confessions
- inadmissible: lawyer request to
see client denied
- Miranda confirms due process
Self-Incrimination
(2) Interrogation – direct questioning
“Any words that the police should
know are reasonably likely to
elicit an incriminating response.”
(a) State has burden of proving
- waiver made voluntarily
- never inferred from silence
(b) Not wanting to be interrogated
- must stop for that crime
Self-Incrimination
c. Request for attorney
- protected under 6th Amendment
(1) 1981: Edwards vs. Arizona
- all questioning must cease
(a) May not re-interrogate
- for same / different crimes
- Arizona vs. Robberson
(b) Unless: suspect initiates
Self-Incrimination
- 1983: Oregon vs. Bradshaw
- initiated with: “Well, what is
going to happen to me now?”
(2) 1984: request for counsel
-invalidates Miranda waiver
- does not apply if family obtain
and suspect does not know
(3) Suspect formally charged
- 1964: Massiah vs. United States
Counsel
- entitled to lawyer’s help
2. Miranda vs. Arizona (1966)
- superseded all prior approaches
- suspect in custodial compulsion
- who is interrogated
a. Freedom of movement restrained
- 5th Amendment right
b. Changes to Miranda
Miranda
(1) 1969: Orozco vs. Texas
- surrounded / held captive in
own home
- in custody
(2) 1976: Beckwith vs. United States
- routinely questioned at home
- not in custody
(3) 1977: Oregon vs. Mathieson
- voluntarily appears at station
Miranda
- at police request
- at own convenience
- not in custody
(4) 1984: Berkemer vs. McCarty
- does not apply to traffic stops
(5) 1984: New York vs. Quarles
- prompted by the need
- to insure ‘public safety’
Miranda
(6) 1985: Oregon vs. Elstad
- first defective warning
- second warning given
- statement given accepted
(7) 1986: Colorado vs. Connelly
- voluntary admission
- without custody / interrogation
- not covered by Miranda
(8) 1990: Pennsylvania vs. Muniz
Miranda
- no warnings for DUI
- before ordering physical sobriety
tests
3. Varying expectations of privacy
- exceptions to the 4th Amendment
- warrant requirement
- warrantless searches
a. Examine constitutionality
- 2 primary ways
Miranda
- reasonableness approach
- warrant /exception approach
(1) Reasonableness
- public safety
- destruction of evidence
(2) Warrant/exception
- preference for search warrant
- limited number of exceptions
Miranda
b. Five primary exceptions
- hot pursuit / automobile exception
- search incident to arrest
- international borders
- closed container
(1) All share 2 important attributes
(a) Probable cause to believe
- contraband / evidence
- in the place searched
Miranda
(b) Justified by an exigency
- urgent situation
- requiring immediate action
c. Hot pursuit
(1) 1967: Warden vs. Hayden
- police enter house
- 5 minutes after witness reported
- search house / locate evidence
Miranda
(a) Court ruled:
- to wait for warrant on PC
- violent crime suspect enters
- risk destruction of evidence
- more violent confrontation
(b) Allows officers to pursue
- within a state
- across state lines
(c) 1984: Welsh vs. Wisconsin
-
Miranda
limit on hot pursuit
barred from entering home
gravity of crime not great
no exigency in such cases
d. International borders
- federal law
- Washington law
(a) Nation has plenary power
- to protect its borders
Miranda
- police may stop / inspect
- incoming travelers / containers
- at random
e. 4th Amendment does extend to
- variety of border search situations
(1) Non-routine / intrusive search
- body cavity search
- reasonable suspicion of violation
- drug courier
Miranda
(2) No particularized suspicion
- required to stop cars
- fixed checkpoints
- some distance from border
(a) PC required to search
- after brief questioning
(b) 1976: U.S. vs. Martinez-Fuerte
(3) Customs officers search for illegals
Miranda
-
roving patrols
100 miles from border
reasonable suspicion to stop
PC to search
f. Maritime searches
- made without any level of suspicion
or cause
- Customs / Coast Guard
g. Incoming mail
Searches
- customs officers
- reasonable suspicion
h. Immigration / Naturalization
- enter officers / industry
i. Closed containers
- PC needed to seize
(1)Exigent circumstances
- to keep from being removed
Searches
- from the scene
- must then obtain warrant
(a) Automobiles
- arrest
- inventory
- probable cause
(b) Booking
- search person
- take all property
Searches
(c) Container already legally open
- lose all expectation: privacy
- legally opened / privacy
vanishes
(d) Applies even if resealed
- freight co. opens
- sees contraband
- reseals / notifies police
(e) Officer reseal / control delivery
Specific Crimes
1. Burglary
a. Professional
- rarely caught
- great deal of planning / expertise
b. Juvenile
- video games / liquor / money
- high probability of vandalism
c. Addict
Crimes
- constant need for drugs
- drugs drives him/her
- not much planning
d. Amateur
- total lack of knowledge
- easily caught
e. Sexual
- pervert that gains gratification
- acts committed while on scene
Crimes
2. Confidence games
- fraud
a. Shell Game
b. 3 Card Monte
c. Home Repair
d. Bank / check kiting
Crimes
3. Forgery
- making / creating a forged instrument
- passing / uttering a forged instrument
a. Signature
b. Fictitious name
c. Endorsement
d. By alteration
Crimes
(1) Forgery vs. worthless check
(a) Forgery
- signed by someone not
authorized
(b) Worthless
- insufficient funds
4. Embezzlement
Crimes
a. Positions used:
- accountants / lawyers / clerks /
cash register operators / tellers /
public officials / bookkeepers
b. Rationalizations:
- company owes for working hard
- loan / going to pay back
- money going to give new start
c. Reasons:
Crimes
- drinking / drug addiction / gambling
- pay to live above means
- personal problems (delusions /
marital indiscretions)
5. Murder
- the deceased
a. How do you know?
- no heartbeat
- no breathing
Crimes
- may be candidate for CPR
b. Eyes fixed / dilated
- if eyes open
- will start to film over within hour
c. Skin cold to touch
- body reaches equilibrium with
surrounding temperature
- ambient temperature
Crimes
d. Rigor mortis
- general stiffening of joints
- due to enzyme action
- build up of acid in muscles
- begins: 2 – 4 hours
- complete: 6 – 12 hours
- dissipates: 12 – 24 hours
(1) Can be accelerated due to:
- high temperatures / muscle
activity / fright / convulsions
Crimes
e. Postmortem lividity
- pooling of blood
- no blood pressure / gravity
- bodies drain / do not bleed
- begins ½ to 1 hours after death
- well developed: 3 – 4 hours
- complete: 8 – 12 hours
- appearance of bruise / burn
f. Decomposition
- breakdown of body
Crimes
-
due to enzyme / chemical actions
begins around abdomen / genitals
progresses from there
abdomen swells / greenish color
insect activity (entomology): can
be used to tell time of death