In Florida, and probably in most states, the prosecutor calls in the lead detective or arresting officer in a case and discusses its merit prior to filing formal charges. This is an area where many inexperienced officers end up walking out of the building feeling like the prosecutor is either a) the enemy, or b) uncaring, c) stupid, or possibly all of the above. Why?
First try to see what’s happening from the other side of the table. Prosecutors hardly ever go to crime scenes or arrest scenes like we do. They don’t see the terror and despair in the victims’ faces; they haven’t experienced the agony of a next-of-kin who has just lost a loved one to a vicious murder. They’ve never risked their own necks in a chase or a fight to lock somebody up. All those ideas are foreign to them. In addition, they have a pile of case files on their desk and, especially in large jurisdictions, the idea is to “move” them, not necessarily try them. They can likewise be reluctant to try a case that doesn’t look like a sure win. We have a different attitude—we are the ones who risked our butts locking the bad guy up. Let’s give it a shot, right? Wouldn’t it be better to go to trial and lose than to never make the attempt at all?
The key to working with a prosecutor involves two important elements: One, know your case, and, two, be confident in it. Now, that’s not to say that we ourselves don’t know from time to time that we are walking in with a crappy case poisoned by shaky witnesses and skimpy evidence. Sometimes it’s all we’ve got and, again, we have the battle temperament that says, “Go for it!”
Most of the time, though, we feel pretty good about our case and we feel like it deserves a chance. So project that to the prosecutor. If you feel strongly about the fact that the guy who swung a 2x4 at you needs to spend time in prison for it, then don’t give in when the prosecutor starts to hem and haw about this sentencing guideline and that, and about how it’s his first offense, and about how the jury might identify with him because of this or that.
Stick to your guns, especially if you’re the victim. You’ve got the power there. If they still want pre-trial intervention, or worse, to nolle prosse it, then calmly ask to move the meeting to that attorney’s supervisor’s office. The preparation aspect is important here, as it is in any court-related proceeding. When the prosecutor sees that you know the times, the facts, the elements of the crime, and how they pertain to this case clearly, there’s less likelihood she’ll try to talk you out of it.
In Florida, when you are the victim in a case, the government cannot make trial decisions without consulting you first, cop or not. This is true in much of the country now, so don’t forget that when you go in for your pre-trial conference.
Oh, how we hate the loathsome depo. Some of you lucky folks don’t have to deal with deposition. Here in Florida, we still do, and we still have to provide discovery on just about everything we contribute to the investigation. This is where the defense attorney in a big case starts licking his chops, because one of his objectives is to collect sworn statements from witnesses—like you—who have not prepared.
The deposition gets typed up and, if you’re like most cops, you never read it, though you are entitled to. You can bet your next paycheck that the defense attorney has not only read it, but has gone through it with a fine tooth comb, compared it to your report, to witness statements, to other officers’ reports, and to case evidence to try to find inconsistencies.
The defense attorney will no doubt have his copy all marked up and ready for attack at the table for trial. He’s banking on the high probability that you still haven’t sufficiently studied the deposition and that you’ll say something contrary to what you said before, which can sometimes be a year or more ago. Do yourself and the prosecution a favor by making sure to review the deposition so you don’t make any unintentional missteps during trial.
Football teams practice and practice during the week, and then it is game time. Prior to the game, there’s usually a team meeting where the coach goes over the game plan to make sure everyone is on the same page. The prosecutor wants to do the same thing with pre-file conferences.
A good prosecuting attorney will try to see the case through the defense attorney’s eyes and will try to sit with you and point out where the defense will attack. You should listen well. If you’re experienced, you’ll probably already have guessed correctly what the prosecutor has highlighted in your report and in your depo.
If you’re very experienced and your prosecutor is not (this has happened on a few occasions in our office), you’ll help the prosecutor come up with a winning strategy. If there is a bona fide weakness in the case, all you can do is minimize it and try to maximize the good stuff you have.
How can you truly prepare? There is no other way to describe it other than the dreaded word “study.” That might take you five minutes, if you were an assisting officer who saw your partner retrieve a gun from under the subject’s seat and it’s a concealed weapon charge. If you are the lead investigator in a difficult homicide that took two years to close, you could be studying for hours, poring over reports and statements, calling the prosecutor with ideas, concerns, and things he might not have seen or considered. It is worth the time.
Your case file on a major case is the journal that chronicles all of your activities during the investigation. It is also a living museum of the crime that was committed. It contains copies of things you found in the victim’s wallet and address book, statements of witnesses, property receipts, and crime scene photographs. It should be “all there.”
When you walk up to the witness stand and tell your story, try to view your role as just that: a storyteller. You are describing events that you experienced, things that you observed, and the things that people told you. The court will try to prevent you from giving your “opinion.” But if carried off properly—with a confident attitude and totally prepared demeanor—your testimony should leave the jury with no doubt that you are convinced of the subject’s guilt.
Without question, appearance has a huge impact. It might be obvious to some, but it will be repeated here: Be neat, be alert, well-rested, wear a uniform or a suit, and have a confident presence. Don’t chew gum. Don’t roll your eyes at stupid questions, even when you see the jury do it.
Be aware of use of eye contact. Use it to your advantage if at all possible. Explain your answer to the jury. They are your audience, and you are the storyteller.
Defense attorneys have a sneaky way of walking off in the opposite direction of the jury when they ask you a question, so that you are likely to be looking away from the jurors when you answer it. One tactic that doesn’t make it real obvious that you are battling the defense attorney’s strategy goes like this: Let your eyes follow her, answer the question to her, then turn your head to the jury and nod, as if to say, “you knew this all along.”
While appearance is important, what you say and how you say it greatly affect the way you and your testimony will be received.
Be clear and just loud enough to project confidence. Try not to look down while you are talking, though the defense will ask you to look at certain documents or pictures to do so. Don’t let a defense attorney get you rattled. He will see during deposition what gets under your skin and what doesn’t.
Remember, it’s all a game. Don’t take personally anything a defense counsel says. Answer politely and calmly. You might get a question like, “How many times did you ask my client if he knew where his wife was?”
The temptation is to come up with a number, to make it sound impressive. Don’t get snared into answering something like this. The best answer is, “I have no idea. I’ve never even considered counting how many times I’ve asked someone something. During an interview, I am more tuned in to what the other person is saying.” Show the jury that you are a professional and that your goal is to get to the truth.