INVESTIGATIVE PROCESSES
CJI 550
LECTURE
Legal Considerations
Introduction
During this week, we will examine legal considerations as they relate to investigative
processes. Among the most important aspects of these legal considerations are criminal law,
constitutional law, and Miranda and rights waivers, which are covered in this week’s readings.
This lecture will concentrate on the dynamics of trial and court room testimony.
Trial
It is important to remember that winning at trial is oftentimes more about who presents
the better argument than it is about fairness or justice. This may seem disappointing; however, it
is a reality that the investigator must acknowledge and live with if he or she is to be effective in
the courtroom.
Before a trial begins, hearings will have occurred during which the defense will attempt
to obtain rulings from the judge that will be favorable to their side. Through discovery, the
defense will have been given access to the evidence that the prosecution plans to present, which
is often challenged as being unfair, especially with highly damaging evidence.
Once the trial is set, it will usually be held in front of a jury in complex cases. A jury will
be selected and both the prosecution and defense will have opportunities to challenge prospective
jurors. As the trial begins, the prosecutor will outline his or her case during opening arguments
and the defense will outline his or her case, each one postulating the weaknesses of the other’s
case.
Following the opening arguments, the prosecutor will present his or her case, usually
beginning with calling witnesses whom were initially interviewed by investigators. It is also
likely that the prosecutor will have crime laboratory experts testify concerning the physical
evidence that was recovered by investigators. Additionally, other law enforcement officers will
testify about information they developed during the case.
The defense will then present their case, usually challenging the physical and testimonial
evidence presented by the prosecutor. Most of the challenges occur during cross-examination of
the investigators where the defense will attempt to call into question the conduct of the
investigation and the credibility of the investigators. Technical issues concerning improper
collection efforts, chain of custody, and method of analyses of the physical evidence are
commonly raised. Questions concerning the accuracy of observations, interviews, affidavits, and
rights waivers are examples of challenges to testimonial evidence.
Following the presentation of evidence, both sides will deliver their closing arguments.
The prosecution will summarize the evidence they presented and explain how it proves the
defendant’s guilt. Thereafter, the defense will review the evidence and argue how the evidence
Copyright 2017 Gregory M. Vecchi
INVESTIGATIVE PROCESSES
CJI 550
presented does not prove their client’s guilt. Ultimately, the jury will render a verdict of guilty,
not guilty, or hung (meaning that they couldn’t come to a consensus on the defendant’s guilt or
innocence).
Court Room Testimony
Ultimately, the final result in bringing a case to fruition is the investigator’s testimony in
court. As a result, it is critical that investigators prepare themselves thoroughly. When preparing
for trial, the investigator should coordinate closely with the prosecutor to avoid surprises in
court. This coordination involves spending enough time with the prosecutor to determine what
questions will be asked by the prosecutor and what responses to expect from the investigator
based on the evidence and facts of the investigation. In addition, the investigator should query
the prosecutor on possible questions and alternative interpretation of the facts of the investigation
that may be brought up by the defense.
The following actions should be considered before testifying:
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Review investigative actions and coordinate with the prosecutor before attending the
hearing
Review all statements for clarity
Review all waivers, affidavits, and search warrants for investigative and legal sufficiency
Review times, dates, and places of primary importance to the investigation
Review investigative notes and prepare miscellaneous notes for use as quick reference
material
Avoid trying to memorize notes
Coordinate with the evidence custodian and physically review all evidence acquired in
the investigation
Verify that the evidence is properly marked for identification
Review the chain of custody
Coordinate with the prosecutor on specific items of evidence required for court
Refresh memory by visiting the scene of the crime
During court, it is important for investigators to establish themselves as credible
witnesses. To accomplish this, the investigator should present an appearance marked by
cleanliness, neatness, and concern for the details. Additionally, the investigator should refrain
from distracting mannerisms or actions, such as shaking, fidgeting, or excessive arm motions.
Investigators should also avoid using police jargon or technical language, as it tends to confuse
the jury. For example, instead of saying “I then observed the suspect exit the vehicle,” the
investigator could say, “I then saw Mr. Jones get out of his car.”
If an objection is raised by either the prosecution or defense, the investigator should stop
his or her testimony until the judge rules on the objection. In addition, the investigator should
never blurt out answers to a question that is asked by the defense until he or she is sure that the
prosecution will not object. Likewise, the investigator should never volunteer any information
while testifying that was not called for in a question. If the investigator does not know the
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INVESTIGATIVE PROCESSES
CJI 550
answer to a question, he or she should respond, “I do not know,” rather than trying to guess,
which can cause a loss of credibility.
The investigator should keep in mind that during cross-examination, the defense counsel
will use a variety of questioning techniques in attempts to establish inconsistencies and
prejudices REGARDLESS of the strength of the case. This should be expected, so it is in the
investigator’s best interest to remain calm, polite, and professional.
Conclusion
The best any investigator can do is to bring into court a well prepared case. The
investigator should not expect the defense to plea bargain or stipulate to anything. In fact, the
investigator should expect rigorous cross-examination. The investigator must be prepared to
provide the best testimony possible, which is grounded in good preparation and coordination
with the prosecutor.
Bibliography
Department of the Army. (1985). Law enforcement investigations. Washington, DC: Author.
Dyson, W. E. (2001). Terrorism: An investigator’s handbook. Cincinnati, OH: Anderson
Publishing.
Fisher, B. A. J. (2004). Techniques of crime scene investigation (7th ed.). Boca Raton, FL: CRC
Press.
Lyman, M. D. (2002). Criminal investigation: The art and science (3rd ed.). Upper Saddle River,
NJ: Prentice Hall.
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Racheldine
1. What is meant by the term, “fruit of the poisonous tree” as it relates to the law?
Fruit of the poisonous tree refers to evidence that is obtained illegally. If the source of the information
(the tree) is poisonous, then the evidence gathered from that source (the fruit) will be tainted as well. If
an investigator tries to hide the source of the information or evidence gathered and it comes out later
who and from where it was obtained, it could completely negate the evidence, solely because it was
gained in illegal ways or from illegal sources.
Fruit of the poisonous tree. (2018, May 28). Retrieved May 28, 2018, from
https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
2. What is the difference between probable cause and reasonable suspicion?
Probable cause is a level of reasonable belief, based on facts that can be articulated, to arrest and
prosecute a person in criminal court. The police and prosecutor must possess enough facts that would
lead a reasonable person to believe that the claim or charge is true. Reasonable suspicion is a lower
burden of proof than probable cause. It is based on specific facts taken together from which a rational
inference can be made, and the suspicion must be associated with a specific individual. Reasonable
suspicion is when a person in the same circumstances could reasonably suspect a person has been or is
about to engage in criminal activity; it depends upon the totality of circumstances, and can result from a
combination of facts, even if each fact is harmless on its own.
Probable cause. (n.d.). Retrieved May 28, 2018, from http://legaldictionary.thefreedictionary.com/Probable Cause
Reasonable suspicion. (n.d.). Retrieved May 28, 2018, from
https://encyclopedia.thefreedictionary.com/Reasonable suspicion
3. What potential pitfalls can occur if the investigator does not adequately coordinate with the
prosecutor before testifying?
If an investigator and prosecutor do not coordinate adequately it could greatly jeopardize the success of
the prosecution of the case. The investigator may not know what the prosecutor will ask and therefore
may not be prepared with the answers. An investigator that looks like they don’t know what they are
talking about on the stand, or makes errors, can look un-credible to the jury. It would also be the job of
the prosecutor to prepare the investigator for possible questions asked by the defense. If the
investigator is not prepared for what the defense may ask, they may get tripped up, and again look like
they are not credible.
Vecchi, Gregory. (2017) LECTURE Week 6. (Microsoft Word Document). Retrieved from
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