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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Segaly
What is meant by the term, “fruit of the poisonous tree” as it relates to the law?
To properly define the poisonous tree doctrine, we must first expound on the exclusionary rule and its
purpose. To curb constitutional violations by government agents, the procurement of evidence, absent a
warrant, is made inadmissible. There are certain exemptions, however; if the evidence would’ve been
discovered inevitably or the officer acted in good faith; illegality in how LEO’s entered to execute a
warrant; impeachment; and its use outside of criminal trials. Since the Supreme Court regards the
exclusionary rule as remedy—rather than a right—the exemptions stand, unless the deterrent effect is
appropriate.
The first exemption considers the fallible state of Man and admits illegally obtained evidence if the
officer: (1) unintentionally violated the fourth amendment; and (2) the officers belief was objectively
reasonable. For example, if acting on a faulty warrant (Judge erroneously believed probable caused
existed), officers found drug paraphilia, the evidence is permissible court. The second exemption
addresses how officers breach a residence or conveyance. In a knock-and-announce warrant, a set
amount time is required before forceful entry. In Hudson V. Michigan, the Court held not that the
evidence would’ve be discovered anyway.
Even if they waited 5-seconds or 5-minutes. Also, it would offer little deterrent to officers, and therefore
asinine reason to exclude. Lastly for exemptions, concerning impeachment, if a witness perjures
themselves, prosecution can offer limited-illegally-obtained-evidence, for the sole purpose of
discrediting him. And exclusionary rules apply only to criminal trials; so, parole hearings and civil trials
aren’t protected. The exclusionary rule and its faithful companion—Fruit of the poisonous tree doctrine,
is a remedy for violations of suspects constitutional rights. So, not only is evidence obtained directly
through violation prohibited; evidence that is discovered as result of evidence violation is also
unacceptable.
What is the difference between probable cause and reasonable suspicion?
In the U.S court system, party’s responsibly is determined by certain evidentiary standards. In civil cases,
for example, a preponderance evidence is the burden of proof required: a mere 51 percent in the
Plaintiffs favor needed for a win. Due to the restrictiveness of criminal penalties, prosecutors are
required to prove beyond a reasonable doubt to the triers of fact(Jurors), otherwise—acquittal. But
what happens when a policeman wants to search your vehicle or person? What level of suspicion is
required for an officer to infringe on your freedom?
Generally, officer’s ability over the citizenry is determines by three degrees of suspicion: (1) Hunches, (2)
reasonable suspicions, (3) probable cause. Officer cannot seize based on a hunch alone, the interview is
completely voluntary. However, reasonable suspicion and probable cause is satisfactory to grant a
limited detainment. In RS, officers must have observed behavior that is suggestive of criminal activity.
An investigatory detention is permitted to determine if criminal activity is afoot. Probable cause is the
standard needed to make an arrest or search warrant application. Officers must have information that
would justify, a reasonable cautious person to believe the arrested person has committed a crime.
What potential pitfalls can occur if the investigator does not adequately coordinate with the prosecutor
before testifying?
If the DA and the investigator aren’t communication properly, several issues may arise, the most
concerning: an acquittal for a guilty suspect. In my experience, the human element, particularly
witnesses are the leading cause of case dismissal. Investigators not only gather and arrest suspects, but
act as psychologists, chauffeurs, and even bounty hunters. Prosecutors are oftentimes overloaded with
large caseloads and little patience for mistakes. Witnesses integral for a conviction, on occasion, don’t
make it to court, alter their testimony, or killed. The DA needs to be in constant communication with
investigators, to ensure all necessary resources are at their disposal; that all legal safeguards are
followed.
If you interviewed someone as a suspect for murder, under what circumstances would you be required
to read him his Miranda rights?
Miranda rights are required to be observed if the suspect is in, Custody and is being interrogated by
police. Simple right? Not exactly. To fully understand, we must operationalize the terms: custody and
interrogation. Let’s define Custody as an arrest or the reduction of suspect’s freedom of action; and an
interrogation, as when police ask investigatory question in the hopes it will elicit an incriminating
response. Let’s say, Jason, our murderer comes to the police station on his own volition and hollers to
every officer in hearing range, that he killed his wife for ordering to many QVC make-up kits. Is Miranda
required—no. The procedural safeguards only come into play when custody and interrogation are
activated. Small talk, non-police actors, and even undercover cops are also not required to use Miranda.
Now, if you discovered him at the murder scene, you better Mirandize him before questioning.
References:
Ogle, R. R. (2011). Crime scene investigation and reconstruction (3rd ed.). Upper Saddle River, NJ:
Pearson Prentice Hall.
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