Defense Investigators Testifying in Court

Transcription

1 Defense Investigators Testifying in Court 1. Best practices, our foundation. The Building Blocks to Success a. Maintain a detailed case log: i. This should include any attempts and contacts, left messages and business cards, conversations, etc. This often goes to due diligence. Special note: When you interview someone, make sure you comply w/pc *, then document in your report that you did so. * (a) No prosecuting attorney, attorney for the defendant, or investigator for either the prosecution of the defendant shall interview, question, or speak to a victim or witness whose name has been disclosed by the opposing party pursuant to Section or without first clearly identifying himself or herself, identifying the full name of the agency by whom he or she is employed, and identifying whether he or she represents, or has been retained by, the prosecution or the defendant. If the interview takes place in person, the party shall also show the victim or witness a business card, official badge, or other form of official identification before commencing the interview or questioning. (b) Upon showing that a person has failed to comply with this section, a court may issue any order authorized by Section b. Document the date/time of interview at the time of the interview. Prepare a report or memo shortly thereafter, good documentation of any follow up calls or interviews, etc. The same should go for photos, records, subpoenas, etc. c. When applicable, have the witness review and initial, i.e., when viewing photos, reading the report for accuracy, your business card to clarify that they know who you are, etc. d. Proof read for typos, correct dates, and names and DOBs, etc. (especially if you use templates) e. Attend professional training, and maintain membership in professional organizations. Keep a current CV or resume; it will bolster your credibility as a professional witness. f. Watch others testify as often as possible. You ll observe when they are honest and confident, how their body language reflects those things or betrays them, and how the jury reacts to them. See how others handle pressure. 2. Communication with your attorney is the second layer. 1

2 a. When a case goes to trial, try to attend some, if not all, of the proceedings. At a minimum, communicate with the attorney daily to keep abreast of developments. b. During trial, maintain communication with all defense witnesses, especially oncall police officers. c. The attorney should inform you as soon as possible if there is a possibility you ll testify. If you are uncertain, ask. d. Ask what issues or topics you ll be testifying on. e. Ask what issues you should avoid. For example, certain issues covered in your report may be excluded by the judge and you may not be aware of their exclusion. Another example may be the exclusion of the defendant s priors. f. Remember that attorneys are under considerable stress while in trial. Some don t sleep or eat right during trial. They are focused on the case and not you. Be patient and supportive. You need to have thick skin. Be flexible; if that means last minute interviews, subpoenas, or field work, late night discussions about testimony, make yourself available. Especially during trial, attorneys can be short, impatient, and testy. Dig deep and rise to the occasion. g. Seek out the attorney to prep you. Don t assume they have a specific time allotted for you. They may be assuming that you don t want or need any prepping at all. h. When possible, practice your questions with the attorney and together, try to anticipate the DA s questions. Think about and formulate your answers so you are more prepared when you testify. i. Ask the attorney if he/she wants you to address the jury or the attorneys when answering questions. 3. Testifying Day a. Dress professionally, but comfortably. Wear a suit whenever possible. b. Limit accessories, make-up, and loud nail polish. Your hair should be neat but not cute or overdone. Men s facial hair and accessories should be court worthy. We want the jury to focus on our testimony and not be distracted by our appearance. c. Review your report several times. Commit to memory the date of interview and date of report as well as pertinent facts in the report. d. Take a copy of the report (which was discovered to the DA) with you to court. Do not take the rest of your file, or notes if you keep them. Inform your attorney of whether you keep or destroy your notes after you prepare a report. 2

3 e. Turn your phone off, or at least to SILENT. There have been plenty of examples when the investigator thought the phone was off or silent, only to have it sound off during proceedings. f. Remember that your behavior in the hallway or outside of the courtroom reflects your professionalism. Other witnesses and police officers will be speculating about who you are. Be careful not to compromise your case by saying the wrong thing in front of the wrong person. Your cell phone should already be on silent. Do not take personal calls. Do not speak to jurors or witnesses on recess. Leave the area to talk to your witnesses. Leave the area to make or take calls necessary for your case. No gum, no beverages, not ever. Take this time to prepare yourself mentally for your testimony. g. If your nerves are an issue, before going to court, try some chamomile tea, meditate, go to your happy place, or do whatever it is that best calms you. On days you will testify, try limiting your caffeine or sugar intake. That said, nothing calms your nerves like being prepared! 4. Testifying: You re ready because you re prepared. a. Address all court staff with equal respect. Demonstrative disdain for the DA, detective, or others will bring negative and angry feelings to the surface. These emotions can cloud our judgment and make us appear less professional. b. Listen to the whole question so you don t anticipate what it will be. Before you answer, wait for any objections. Answer closed ended questions with a simple yes or no. Speak your answer slowly and confidently into the microphone. Don t volunteer any additional information or explanations. c. If you prefer to use Yes sir/ma am clear it with the attorney first. It may be that cops testify that way and therefore the attorney wants or specifically does NOT want you to testify the same way. The same goes for facing the attorney or facing the jury when responding. There may be room for both. Discuss with the attorney when either would be appropriate (i.e. when asked to explain a process to the jury). Sometimes the attorney will signal you by saying, Please explain to the jury how you d. If you need to refresh your recollection by reviewing your report, ask permission from the attorney. Then, wait for the attorney to request permission from the court for you to do so. Once the court grants you permission, proceed to retrieve 3

4 and review your report. Once you have reviewed it, turn it over, and respond. Do not read from your report. e. We all know what the common areas of attack are and we see the assault coming a mile away. Nonetheless, do not get defensive. Even when you know the question is a set-up for a fall, answer the questions politely and honestly. Do not attempt to be clever or play semantics. The prosecutors have way more experience cross examining than we will ever have testifying. Trust your attorney to rehabilitate any damage done by the DA. Honesty, even if you have made a mistake, will enhance your credibility. f. When asked a question on cross, take a breath and wait before you answer. Seconds can feel like an eternity, but don t immediately blurt out your answer. This gives your attorney time to object. You feel silly, but you merely look as if you are considering your answer. g. After cross examination, your attorney may need to clean things up a bit. If your attorney asks you a follow up question and you are not quite sure where they are going with it, ask for clarification. Some attorneys will ask the question a few times before moving on. Others will ask (and have been taught to ask) a leading question in this scenario, even though it will be objected to and sustained, so that you are aware when they ask the question in the correct way, what they are looking for. h. It s normal to feel nervous. Keep your hands on your lap when you testify so that you don t accidentally allow any nervous fidgeting to be displayed. i. Thank the judge or the court when excused as a professional courtesy. This could also be as little as a smile and nod toward the court and/or jury. 5. The translator assisted interview, a conversation to be had beforehand. a. Who will take notes? Who will prepare a report? Who ultimately testifies to this interview? These issues need to be discussed with your attorney before commencing the interview. i. This is important for purposes of testifying. If the investigator conducting the interview testifies to the content of the interview obtained through the use of a translator, a hearsay exception has to be made. If the DA refuses to allow this exception, the translator will have to testify. Since 4

5 the translator usually does not take notes or prepare a report, their independent recollection cannot be relied on as testimony and they may not be asked to recall it for months after the interview. 1. One possible approach: Investigator completes a typed memo of the interview notes ASAP and allows the translator to review it immediately. The translator can then initial and date it if he or she feels comfortable that the content of the typed notes reflects the sentiment of the individual that was interviewed. Then, regardless of who has to testify, both individuals can testify off of the same report. 6. Digital recording of interviews, a hot button issue on cross. a. First off, know that everyone, including cops (when they don t record, for whatever reason) gets attacked on this issue. b. The questions will be the usual: Did you record the interview? No. Did you have access to a recorder? Yes/no/maybe. Why did you not record? If you recorded, we would know the exact words of the witness and not have to rely on your notes or recollections etc, etc. c. What if the DA starts asking about our office policy or training manual or if there is an investigator s handbook which dictates whether or not to record (or any other issues like interviewing minors, etc.)? i. One possible answer is that you are allowed to use your judgment and make decisions in the field based on your training, experience, and the situation before you. d. One way to head off the issue is to discuss the following scenario with our attorney: i. Defense attorney may or may not choose to ask you on direct WHY don t you record your interviews? Your answers may then include some or all of the following: 1. People often feel reluctant or awkward discussing sensitive information when recording devices are present and when they are knowingly being recorded. Furthermore, they may worry that the defendant, a spouse, or other person may hear their words 5

6 when they do not want others to know their sentiment on a particular issue. 2. Police have dedicated rooms with hidden cameras and audio recording devices. They have squad cars and uniforms designed to maintain hidden recording equipment. Our department does not have this type of equipment. 3. Unlike police, we cannot surreptitiously record and must obtain the consent of parties prior to recording. 4. Field recordings often contain background noise which makes it difficult to later review the contents. ii. The defense attorney can then ask if you took notes, asked follow up questions, and shortly thereafter prepared a report? Yes. Your attorney may then ask you if you feel confident that your report, although not a word-by-word transcription of the interview, accurately reflects the content of the interview. Yes. You have then effectively been asked the tough questions and were allowed to explain the WHY NOT of why you did not record. 7. Verbal reports, Confidential Memos, Summaries, and Investigation Reports. What s the big deal? It depends on who s asking. a. Always ask the attorney how they wish to receive the information you have obtained i.e., verbal report, confidential memo, summary, written report, smoke signals.in any event, if it is to be written, ask your attorney how they want the information to be labeled. b. Whether you keep your notes or destroy them after they have been memorialized in writing, it s important to always be consistent with your practice and let your attorney know which is your habit and practice. c. Even if the attorney says don t prepare a report, it is best to type out your notes with the heading typed notes as soon as possible after the interview. As you type your notes, you may fill in the information that was left out in your short hand version. You may also be able to add details from your memory about the interview that may be lost down the road when you are asked to prepare a 6

7 report. This process may also trigger follow up questions or allow you to identify holes in the story you had not noticed before. If the attorney asks you to write a report six to twelve months down the road, you can easily transfer the notes into a report form and edit. d. Be careful about referring to the content of your report as being a summary of your interview, unless it is. Your attorney may ask you to relate only the information they believe is legally required to turn over to the DA in your report. It is up to the attorney to follow the law as to what is discoverable. You operate under their bar card. You did not go to law school and are not expected to interpret the law as to the rules of discovery, but being an ethical investigator is your responsibility. It s YOUR credibility and professional reputation on the line. The attorney may not care about your professional reputation. Read 1054 of the penal code which refers to the rules of discovery. If you have any concerns about what you are being asked to include or exclude from your report, talk to your attorney. If you don t feel comfortable talking to your attorney about their request, or you have spoken with them and you still feel uncomfortable, go to your supervisor with your concerns. e. Inv. P. Crastinator conducted an interview with witness M. Snitchy on March 18 th of A Jury trial date is set on January 18 th of Today s date is January 6 th, 2012 and your attorney has asked you to create a report because she intends to call this witness at trial. Do you: i. Date the report using today s date, exposing your report and your recollection to criticism? ii. Don t date the report at all, exposing you to criticism? iii. Use the date of your typed notes, which you created immediately after your interview, also potentially exposing yourself to criticism? There is no right or wrong answer. There are only ways to minimize criticism. Some attorneys feel that you do not need to include the date of which the report was created. The theory is if there is any amount of time between the interview date and the date the report was created you are subjecting the content of the report to criticism. Conversely, without the date of the report on the report, you are still subjecting yourself to 7

8 criticism as the DA will look for it and ask you on the stand when the report was created. Still others feel that the date your notes were committed to writing is the date the report was created, thus the date of your typed written notes is the date your report was created. Which is best for you and your case? The answer should come from a discussion with your attorney. 8. Your credentials: You are a professional does the jury know that? a. Your CV i. Tell your attorney about your education, training, and years of experience. It s not necessary to have a CV, but it s handy to keep a running tally of your training, or the amount of felonies or homicides you ve worked. ii. If you don t have a current list of all your training or a list of how many of the various types of cases you ve worked, give them your best estimate. One way to approximate your experience may be by keeping track of your cases by severity for a year. Average it by multiplying it by your years of service. It s okay to approximate. iii. What happens if a DA asks us if we are POST certified, or if we have/need any special certification or licensure at all to be a defense investigator? Hopefully, our attorney will have already elicited that information on direct. However, this is another one of those times where we do not panic or get upset as the answer is simply No. If this was not addressed on direct, our attorney can rehabilitate us by asking us on redirect such questions as, Are you able to become POST certified? No. Does the law require you to obtain any such certification or licensure to testify as a defense investigator? No, it does not. Do you voluntarily go to trainings or attend conferences that further your ability to be a defense investigator? Yes. (if you do, and you should) You may be asked to further explain in details your credentials or training. iv. If you are lacking in training, education, or experience you want to be sure your attorney is advised of this. 9. Relax, Reflect, Renew a. Your credibility matters to the jury, but it is rarely the deciding factor in someone s guilt or innocence. Do your best, be honest, and be sincere. You are 8

9 not only making an impression on this jury, but also on the prosecutor whom you may face again. Show them that you are professional and beyond reproach. b. After your testimony, talk to your attorney about what you did well and where you can improve next time. Be open to feedback. If you feel comfortable, ask a colleague or intern to watch you testify and give you honest and constructive feedback. c. If the attorney poles the jury, try to elicit the jury s feedback about the Defense Investigator s testimony. d. Now that this experience is behind you, move forward with confidence and use whatever you learned here to make your next experience even better! 9