8.6 Preparation and Presentation of Courtroom Testimony LESSON PLAN

Transcription

1 LESSON PLAN Course: Class Title: DUI 8.6 Preparation and Presentation of Courtroom Testimony Effective Date: January 14,

2 COVER PAGE TIME: COURSE : CLASS TITLE: CLASS LEVEL: 2 Hours DUI 8.6 Preparation and Presentation of Courtroom Testimony Basic Recruit OBJECTIVES: See page 3 METHOD OF INSTRUCTION: METHOD OF TESTING: TRAINING AIDS: Lecture Written Standard classroom equipment REFERENCES: See page 4 COMPLETED BY: Thomas G. Blankenship DATE: December 18, 2008 REVISIONS BY: Danny J. Dailey DATE OF REVISIONS: December 18, 2012 APPROVED BY (signature): Scottie Saltsman DATE APPROVED: December 18,

3 OBJECTIVES Without reference, the recruit will be able to: describe the three phases of detection in accordance with NHTSA standards describe the tasks and key decisions of each phase in accordance with NHTSA standards discuss the uses of a standard note taking guide in accordance with NHTSA standards discuss effective guidelines for effective testimony as explained in class discuss the essential elements of field notes and the written DUI report in accordance with NHTSA standards list the different types of evidence to be presented in a DUI case at court as explained in class discuss the importance of pretrial conferences with the prosecutor as explained in class. 3

4 REFERENCES U.S. Department of Transportation, National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing, National Highway Traffic Safety Administration, Pamphlet DOT HS , The Detection of DWI Motorcyclists, July National Highway Traffic Safety Administration, Pamphlet DOT HS , The Visual Detection of DWI Motorists. 4

5 INTRODUCTION The courtroom can be a scary place for the officer early in his or her career. The demeanor of judges, attorneys and the public, both in the courtroom and public areas of the courthouse, cause concern. This will ease as the officer testifies more often. Court takes you off your home court, the streets, and puts you in someone else s home court: the attorneys. Later in your career you will find court to be inconvenient as days off and shift work make it somewhat of a hassle for you. To be a good officer, you must overcome this attitude with the courts and learn that this is one of the most difficult tasks of being a police officer, but one that is necessary and is the basis of what our legal system is built upon. 5

6 The objectives for this class, which should be located in your Resource Guides, are as follows: Without reference, the recruit will be able to: 1. Describe the three phases of detection in accordance with NHTSA standards. 2. Describe the tasks and key decisions of each phase in accordance with NHTSA standards. 3. Discuss the uses of a standard note taking guide in accordance with NHTSA standards. 6

7 4. Discuss guidelines for effective testimony as explained in class. 5. Discuss the essential elements of field notes and the written DUI report in accordance with NHTSA standards. 6. List the different types of evidence to be presented in a DUI case at court as explained in class. 7. Discuss the importance of pretrial conferences with the prosecutor as explained in class. VID NTF Getting Tough on DWI: the Defense (15 minutes) The purpose of this video is to get the officer to see the DUI case from the perspective of the defense attorney and to realize the importance of proper court preparation. 7

8 OBJ4 NTF After showing the video, point out the following to the class regarding the previous video: The speaker is a DUI defense attorney who is training other defense attorneys. He emphasizes the following to his colleagues: Keep the testifying officer off balance. Don t let the witness know where you are going. Focus on the prosecutor s weakest part of the case. Defense attorneys do not like to cross examine Sheriff Taylor ; the nice, polite, good guy officer. The defense attorney may accept your version of what happened, but will challenge your interpretation. The defense attorney will usually win or lose a DUI case based upon the arresting officer s testimony. AFQ 8

9 Quick Review of Previous Information OBJ1 What are the three phases of DUI detection? Phase I Phase II Phase III Vehicle in Motion Personal Contact Pre-Arrest Screening OBJ2 What are the tasks and key decisions of each phase? Phase I: Task 1 - Observation of the driving of the suspect vehicle Task 2 - Observation of the vehicle during the stop Key Decision: Should I stop the vehicle? Phase II: Task 1 Observation of the operator after the stop Task 2 Observation of the operator exiting the vehicle Key Decision: Should the driver exit the vehicle? Phase III: Task 1 Administer psychophysical tests Task 2 Administer preliminary breath test Key Decision: Should I arrest the driver? AFQ 9

10 Mark Twain wrote that The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury. What did Mr. Clemens mean by this? He was commenting on the weakness of the jury system. Whoever tells the best story in the best way will win. You need to embellish the truth to win. Defendants and defense attorneys don t play by the same rules as police officers and prosecutors. If you re not smart enough to get off of jury duty, you probably shouldn t be on one. What did the famous poet, Robert Frost, mean when he wrote that A jury consists of 12 persons chosen to decide who has the better lawyer? The person with the money & best lawyer usually wins. 10

11 What does the U.S. Constitution say about the rights of the defendant? Does the defendant have the right to a trial of his peers or the right to an impartial jury? The 6 th Amendment to the U.S. Constitution reads the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed AFQ 11

12 Thomas Jefferson, the author of our Declaration of Independence and our third President, wrote that the juries are our judges of all fact, and of law when they choose it. To what was he referring? Jury Nullification What is jury nullification? The jury, in effect, nullifies a law by acquitting a defendant regardless of the weight of evidence against him. Perhaps the jury does not like or agree with the particular law, or perhaps do not like the police, so they find the defendant not guilty, no matter how black or white the case may be. 12

13 What are some problems with contemporary juries? Jury members are often too busy and don t have time to hear a case and may resent being summoned to jury duty. They may distrust the court system. They may distrust law enforcement. They may have broken the same law themselves (especially DUI). 13

14 Juries have often already formed an opinion regarding the guilt or innocence of a defendant prior to trial due to publicity of the mass media. AFQ 14

15 The prosecutor is elected every four years to the office of County Attorney, who prosecutes in District Court. The Commonwealth Attorney, who is elected to a six year term, prosecutes in Circuit Court. Prosecutors, like the police, can only zealously do their jobs to the extent that the public allows. If the prosecutor was over zealous, what would be his chances of re-election? Slim. Sometimes the prosecutor does not believe that he has a good chance of winning in court, due to a lack of physical evidence, poor police investigation, poor witnesses, lack of police credibility or a weak jury. What is going to happen if the prosecutor doesn t believe he can win in court? Dismissal; Reduction of charges; Plea Bargain 15

16 About 95% of all felony convictions in the U.S. are the result of plea bargains. (PBS.org) What are the advantages of plea bargaining? It assures the conviction of the guilty person. It saves time (judge, prosecutor, officers, witnesses, citizens) and taxpayers money. It relieves an over-crowded court docket. It can further a case against a co-defendant. A prosecutor may accept a negotiated plea from one defendant in return for damaging testimony against the other defendant. What are the disadvantages of plea bargaining? The guilty are punished too lightly. The innocent are pressured to plead guilty to avoid the risk of going to trial. (PBS.org; Criminal.findlaw.com) 1 Hour 16

17 What happens if the defense attorney does not zealously defend his/her client? Probably would not make much money due to a lack of clients. Do you see the term zealous in the definition of the prosecutor? No Although an officer of the court, do you think the defense attorney is going to bring out evidence he uncovers in the criminal act if it would harm his client? 17

18 No 17

19 What is a lay witness? An ordinary person who has first-hand knowledge about matters relevant to the case and who testifies based upon his personal knowledge and life experiences. What is an expert witness? One who testifies based upon his qualifications of expertise in his field. An expert witness may provide opinion testimony. A breath test operator is not an expert witness. (definitions.uslegal.com) AFQ 18

20 Witnesses for the prosecution include the arresting officer, breath test operator, other police officers, such as backup officers, witnesses necessary to maintain the chain-of-custody of the physical evidence, other lay witnesses and possibly expert witnesses. Usually the arresting officer and the breath test operator is the same person. What is the advantage of having a BTO who is not the arresting officer? Another opinion regarding the suspect s sobriety. What is the disadvantage of having a different BTO? Another officer taken off patrol; in court; extra cost 19

21 Witnesses for the defense may include the defendant, passengers who were in the vehicle when the defendant was arrested, other lay witnesses and expert witnesses. AFQ 20

22 OBJ6 Some examples of DUI evidence include blood, videos and photos; factual, such as the accuracy of the breath test instrument; field sobriety tests; citation, chemical test results, BT Operator s Manual; and officer s testimony. Blood test results can take 6 months to receive. With the Intoxilyzer, results are immediate. Keep videos securely locked so they can be admitted as evidence in court. If you need expert testimony, the KSP Lab has Intoxilyzer technicians, most of whom are chemists. How important is it that the officer follow SFST exactly? Very! This is how it is standardized. These tests have been validated through academic and field study and research. Some DUI defense attorneys have gone to classes to be certified in the instruction phase of the SFST. When you go to court, take your SFST instructions with you. You may have to demonstrate these in court. 21

23 OBJ4 If you must demonstrate the SFST in open court, ask the judge if you may remove and secure your duty belt. You should not attempt to demonstrate balance tests with an extra 20 pounds strapped around your waist. Why would you not want to take the Breath Test Operator s Manual onto the witness stand with you? The defense attorney is entitled to examine it and he may begin asking you questions from it. It is not likely that you will remember it all. Why is the citation important? It is the official charging document. Both the prosecutor and the defense use it to help prepare their cases. When you complete a citation, take your time to ensure that it is complete, clear, and accurate. Give attention to detail. The chemical test result card is a strong piece of evidence. You should inform the judge and jury that if anything had been wrong with the instrument, you would not have a completed test card to produce in court. The officer s verbal testimony is the only description that is going to take the jury to the crime scene and allow them to see what happened. You should tell your story in detail and explain why the situation was dangerous, how you recognized the signs of impaired driving, how the defendant performed the SFST, symptoms of intoxication, and other relevant facts of the case. Speak in plain language, using terms that the jury will understand. Do not use police jargon! 22

24 OBJ4 The defense will likely challenge your observations and interpretations. Each of the SFST is based upon your observations and interpretations. The defense may challenge your credentials. You are well trained. Have faith and confidence in yourself, your training, and your experience. The defense may challenge your credibility. To be credible, you must always behave ethically, both on and off duty. Also, never lie under oath. This is perjury. Once you lose your credibility, you may never regain it. Do not take the defense attacks personally. Welcome them. The defense may challenge the instrument. The Intoxilyzer has held up in court and is accepted in 42 states and several other countries. It is the only one accepted in Ky. The defense may challenge the DUI law, but both the Per Se and Implied Consent have been upheld in court. 23

25 OBJ4 When does preparation for trial begin? Preparation for a DUI trial begins at the time of detection. Always remember, you must have a reasonable suspicion to stop a vehicle; one that you can articulate in your report and in court. AFQ 24

26 OBJ7 A pretrial conference is an informal meeting between the prosecutor and the officer(s), prior to court, to discuss the details of the case. Prior to this conference, you should thoroughly review all of your notes, evidence, and formal reports. Bring these with you to the pretrial conference. The purpose of the pretrial conference is to exchange information with the prosecutor, answer questions, examine any weaknesses in the case, help the prosecutor to decide whether or not the case is strong enough to proceed with the case in court, and to prepare you for trial testimony. AFQ 25

27 OBJ3 For purposes of the arrest report and courtroom testimony, it is not enough to report the number of clues on the three tests. The numbers are important to the police officer in the field, because they help determine whether there is probable cause to arrest. But to secure a conviction, more descriptive evidence is needed. The officer must be able to describe how the suspect performed on the tests, and what the suspect did. The standard note taking guide is designed to help develop a clear description of the suspect s performance on the tests. AFQ 26

28 OBJ5 Field notes serve as a permanent aid to your memory. They are an aid in your investigation and in your court testimony. They provide a record of past events and also serve as a foundation for your reports. Begin writing your field notes as soon as possible. Do not depend on the dispatcher or anyone else to take your notes. You will be the one on the witness stand and it is your responsibility. Your DUI case may be continued for months or over a year before it goes to trial, so you must maintain good, professional notes. There is not enough room on the citation to record all of the necessary information. In addition to written notes, you can record audible notes in an inexpensive tape recorder that you can wear on your gun belt. For hand-written citations, what goes on the last 3 lines of the Post Arrest Complaint? 27

29 Breath; Blood; Urine results 27

30 OBJ5 The A-B-C of note taking is accuracy, brevity and clarity. Your notes should be accurate, brief and clear. Write legibly enough so that others can read and understand your notes. Record your name, date and case number at the top of each page of your notes. Use a small notebook. If it is too large, you will not use it. Record the facts in your notebook as soon as you get them. Check all of your notes for proper spelling and numbers, dates, time, etc., for accuracy. Study your notes prior to trial to refresh your memory. AFQ 28

31 OBJ5 It is important to write good DUI reports. Prosecutors, judges, juries and others will judge your competence and professionalism based upon the quality of your reports. Make sure that you record the facts of the case, not your opinions. For example, do not write about someone s state of mind. You are not a doctor and this calls for an opinion. This would be difficult for you to defend in court. You may make inferences, or conclusions, if they are based upon sufficient facts, but it is probably best to allow the readers to draw their own conclusions. Make sure your reports are fair and objective, which should be a reflection of you. You should be an impartial recorder of the facts. Make sure your reports are complete, recording all of the relevant facts. Your reports should be clear to the reader. All readers should have the same interpretation of your report. Your reports should be mechanically correct and written in standard English. This includes proper grammar and spelling. Additionally, your report must be legible to the reader. 29

32 OBJ5 If your suspect refused to take a test, such as the breath test, explain how he or she refused. Use direct quotes, using quotation marks. Use specific, concrete terms, not abstract terms, when describing people s appearance, behavior, statements, etc. Do not be vague. Write in chronological order when writing your report. Avoid sexist language. The use of this type of language can alienate jurors and others. All of your reports, including the official charging document, the uniform citation, is a direct reflection of you and your work. The defense may use any mistake to discredit you and to attack your competence in court. Therefore, proofread several times for accuracy, completeness, and mistakes. 30

33 FINAL REVIEW When does preparation for trial begin? At the time of DUI suspect detection What are the purposes of field notes? Permanent aid to memory; An aid in case investigation; Aid in court testimony; Provide a record of past events; Serves as the foundation for the report What is the A-B-C of field notes? Accuracy, brevity, clarity What are some different types of DUI evidence? Physical (blood, videos, photos); factual; demonstrative; documentation; testimony Why is a pretrial conference with the prosecutor important? Plans and organizes the prosecution; examines strengths and weaknesses of the case; examines all paperwork and evidence; eliminates surprises during trial. Is a breath test operator an expert witness? No TIME: 2 Hours 31