Courtroom Testimony

1. Courtroom Testimony CJUS 201 Criminal Investigation Part 13

2. Court • 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. Court • 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

15. 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.”

16. 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?”

17. 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

18. 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

19. Court f. The pick-up - establish rapport with prosecutor - pick-up on his/her cue questions - prosecutor should pick-up on officer cues • Communicating with the jury a. Always be polite - speak to jury / maintain eye contact - clear / concise as if telling a story

20. 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 • Courtroom testimony

21. 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

22. 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

23. Testimony (5) Probation hearing - adversarial - hearsay admissible (6) DOL hearing - adversarial (defense attorney) - hearsay admissible (7) Forfeiture hearing - adversarial administrative - less formal / hearing examiner

24. Self-Incrimination • 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 - no eyewitnesses - circumstantial only

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. Counsel - entitled to lawyer’s help • 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

35. 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

36. 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 ‘publicsafety’

37. 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

38. Miranda - no warnings for DUI - before ordering physical sobriety tests • Varying expectations of privacy - exceptions to the 4th Amendment - warrant requirement - warrantless searches a. Examine constitutionality - 2 primary ways

39. Miranda - reasonableness approach - warrant /exception approach (1) Reasonableness - public safety - destruction of evidence (2) Warrant/exception - preference for search warrant - limited number of exceptions

40. 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

41. 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

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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

48. Searches - from the scene - must then obtain warrant (a) Automobiles - arrest - inventory - probable cause (b) Booking - search person - take all property

49. 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

50. Specific Crimes • Burglary a. Professional - rarely caught - great deal of planning / expertise b. Juvenile - video games / liquor / money - high probability of vandalism c. Addict