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Mark Clark

Mark Clark

Mark Clark is the public information officer for a law enforcement agency in the southwest. He is also a photographer and contributor to POLICE Magazine.
Patrol

Besting the Defense at Cross Examination

Get all of your ducks in a row at the start to ensure an airtight case.

August 03, 2007  |  by Dan Pasquale - Also by this author

We all know the feeling. You catch the bad guy, book all of your evidence, and put together a great case. Now you're in court, sitting on the stand answering the district attorney's questions when he or she finally says, "no further questions." The judge looks over at the defense attorney and says, "Defense, cross examine." The defense attorney looks at you and smiles, and you hope your case is as airtight as you think it is.

Sound familiar? If you've ever been in this situation and been "shredded" by a defense attorney, you know the importance of thinking pro-actively when it comes to defending your case. Unfortunately, this needs to be done at the crime scene and immediately thereafter, or most of your best chances will be gone.

With this in mind, let's take a look at three of the defense's best tactics for getting a client to walk free. Thinking of these arguments during your case will help you shut the vacuum seal on your bad guy and get successful prosecution.

The Question of Standing

We all know one of the first things we check when conducting a residence or vehicle search is if the suspect has any legal connection to that item. "Standing" is just legalese for that process. The term can mean other things as well, but for the purpose of this article, we'll concentrate on its most common definition. 

The most common mistake officers make in relation to standing is not documenting enough of it. Almost all officers know they have the legal standing to conduct a search prior to doing it (let's hope!), but then quickly forget to record proof of that for a later date. The defense will almost always attack this point if the officer hasn't shown he or she has enough proof to connect the suspect with the crime.  

This is also a good time to review the very important topic of collecting and/or documenting indicia. Simply put, indicia are items that prove your suspect lives at the place you're searching. The perfect example of this is mail addressed to your suspect with the address printed on it. Utility bills are one of the better forms of this, as everyone needs to pay the electrical bill (or at least get a bill). Besides mail, other items such as documents, prescriptions, and photographs can serve the same purpose.

The overall goal of collecting indicia is to show a nexus between your suspect and the house or property you are searching. It is one of the first things the defense counsel will attack, trying to show his or her client was "just visiting" when the big bad cops kicked in the door. Be sure you have plenty of indicia and other ways of proving your suspect was truly in his castle when you stopped by to say hello.    

Clothing and Personal Property

What was the suspect wearing when you arrested him? Did you arrest your burglar at night while he was wearing a black jacket, black pants, black gloves, and a black hat carrying a crowbar standing next to a pried-open door? Think this would be an important point to bring up in court?

Most of us would clue the district attorney into this little fact. However, if you don't document it and take photos of it, you will get attacked (possibly successfully) by the defense. Even if the judge believes you as an officer, the defense can (and will) bring up this little zinger, "Why didn't you think this was important enough to photograph or document, Officer?" The defense will likely follow that one up with this hook, "If you forgot this important fact, what else did you fail to document in your 'complete' report, Officer?"

Lawyers love to make officers squirm by using these arguments, so be ready for them by documenting and photographing the exact way you found your suspect: clothes, property, and all. Also make sure you document where you found your suspect and the condition of the area. Was your suspect standing in a nice well-lit street corner waiting to cross the street, or was he crouched behind bushes in a darkened alley? Remember, if you don't put it in your report, it didn't happen.  

Quality Statements

Whether they are witness, victim, or suspect statements, what people tell you is of vital importance to your case. How you document these statements is even more important.

When it comes to statements, the best evidence will always be a recording of the person speaking. However, we can't always record everyone, so there are other options. If they are willing, have them write out a statement. Then, read over their statement and ask any questions you need to, documenting the questions and quoted answers at the bottom of the statement. After you have covered all the bases, have them sign their statement under your questions. This will counter the "you wrote this after they were finished" argument. Their signature locks them into those questions as well, just like a signed contract locks a buyer into a purchase.

While we are on the topic of statements, remember the elements of your crime when questioning suspects, witnesses, or victims. Be sure you cover all of the elements that will qualify the crime you are charging. Be sure to ask witnesses and victims about any history with the suspect that may be important. Is there an ongoing problem with that individual, or was this a random act?

Is your suspect lying to you? That can be just as good as an admission at times. Be sure to let him, but ask as many detailed questions as possible. This locks your suspect into his lie, and when he begins making up a flurry of details in rapid succession, he's bound to trip up somewhere. Be sure to ask about things you can check on later, so you can cut through the lie in court. Again, record these statements well.

Taking a proactive approach to defense arguments will help you successfully prosecute many more cases. Plus, it will get you to the best part of cross examinations faster, the part where the defense attorney says, "No further questions."

Tags: Duty Tips


Comments (1)

Displaying 1 - 1 of 1

Mark WAPOL @ 8/4/2007 3:08 AM

I am currently a Shift Supervisor – Patrol Sergeant on the west coast of Australia. Having served for 27 years and a part of that as a Detective with Homicide (Major Crime) I can say that NOTES, photographs and the seizure of exhibits are important. Wether they, notes, are made at the time or shortly after, come court time no price can be put on them. The article above is very true.

It is vital to your credibility, to The Department’s and the people we serve that we present the best case possible at the court. After years in law enforcement you begin to see that your reputation in the witness box becomes known amongst some lawyers and Judges. They know that you cover the elements of the offence and your case is prima-facia and solid on the day of trial. Sure they will still try to find a point to get in on if it has gone this far (trial) but you know your law on search and seizure, standard operating procedures (SOP’s) and are solid in that witness box. It is your bread and butter.

When you are grilled in the witness box and your verdict comes back with that cringing words of “not guilty”, don’t take it personally. Learn from this one. Be critical of the entire investigation and this way you learn making the next case that much better.

I look at is as a football match so as not to take it personally. First quarter: Complaint and attending the scene. 2nd, gathering the evidence and locking up the bad guy. 3rd, getting it all together closing any issues and preparing that brief for the court and finally 4th quarter; the day in court. If you are well up in the 3rd quarter then the final quarter is generally a winner.

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