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There are some prosecutors who still believe we do not have to prepare our law enforcement witnesses for trial testimony. I respectfully and vehemently disagree. Jurors no longer automatically trust law enforcement officers. So presentation matters.
The following is a discussion of presentation mistakes made at trial by the good guys. All were experienced cops and prosecutors. The point is that these mistakes were not made by second-rate officers and attorneys, but rather by first-rate officers and veteran prosecutors.
Put It On Paper
Testifying well begins long before you get the subpoena. It begins with proper documentation of your investigation.
Take accurate notes. Reports should be complete and accurate. For example, in a double homicide in a residence in San Pedro, Calif., a patrol officer was told by detectives to door knock. A neighbor, an elderly Hispanic man, communicated through his granddaughter. The officer wrote in his notes: "After wit heard the shots, someone went in and turned on the lights." At trial, the defense called the officer as a defense witness and got him to testify that the witness may have meant that, after the witness heard the shots, "someone went into the house and turned on the lights."
Why was that important? Because the "someone" who turned on the lights was our informant/witness, and he already had testified that when the shots were fired he already was in the house. Fortunately, we called the granddaughter to the stand who explained that her grandfather had said someone "went into the room” and turned on the lights.
Shortly after you prepare your written notes, try to type them up and "flesh them out" if you have time. That is when your memory of your witness interviews will be the freshest. Remember, it is your memory that counts; your notes are merely an aid to your memory.
Make copies of your notes and keep them in a personal file, at least in homicide investigations.
Choose your words carefully. For example, one of the investigators prepares a chronological record that says "four lifts from shotgun, negative on comparison with [defendants' prints]." The detective meant lifts from the shotgun had not been compared with the prints of either defendant. But at trial, the defense attorney cross-examined the detective and tried to get the jury to believe that the words "negative on comparison" meant the detective had been told by the print specialist that prints on the shotgun were not those of either defendant. Words are important.
When working with a partner, only one of you should take written notes of witness interviews. If you both take notes, you should compare notes.
There was a homicide detective that my partner and I worked with on a Mexican Mafia (Eme) investigation. One of the detectives was transferred and the other detective got a new partner. Both went out to interview a witness and both took written notes. Unfortunately, the new partner did not know the case as well as the original partner. The new partner wrote that our critical witness said an Eme tax collector had picked up a "shotgun" instead of a ".25 auto." Of course, the original detective had written that the tax collector had picked up the ".25 auto." And of course, the latter was what our critical witness said at trial.
All that confusion occurred because two homicide detectives did not compare notes. Especially, because one of them was not familiar with the facts. Only the detective familiar with the case should have made the written notes.
A word about handwritten notes: If you record the audio of a witness interview, you may destroy your handwritten notes. If you do not record a witness interview, you must keep your handwritten notes even if you type up a report of the interview. It is a pain in the butt, but that is the law.
Either the subpoena will be served upon you personally or you will be notified by your subpoena control desk officer. The first thing you do, if the subpoena is an in-court subpoena, is call the DA shown on the subpoena to see if you can be put on call. Trials very often are continued. Inform the DA of your planned vacations and other days off.
What if you have a ski trip planned? What should you do? Should you just ignore the subpoena? No. Never just ignore a subpoena, unless you want to have a body attachment issued for you.
Testifying is part of your job. Catching the bad guy is worthless unless he is convicted. Show up in court and stop bitching about it. Also, prosecutors cannot guarantee you won't have to come back. We have only limited control over court schedules. There are timeouts caused by judges and jurors, illnesses, and other unforeseen circumstances. Testifying is part of your job. Put up with the inconveniences and stop complaining to the prosecutor.
Wear a suit, not a uniform, and not a sports coat.
Between your house or station and the courtroom, including the elevators and the hallways, both before and after you testify, consider that anybody who can see you and hear you could be a juror. Act accordingly.
While waiting to testify in the hallway outside the courtroom, don't stand around joking and laughing with other LEOs. Jurors may be watching and listening.
Turn off all pagers and cell phones while in the courtroom. It probably is not enough just to put them on vibrate. Turn them off. If they sound, not only will some judges confiscate them, but you will be reprimanded in front of the jury.
If you think your gun, cuffs, and spare mags will distract you while on the stand, carry them in a small bag or briefcase and dump them at your feet on the witness stand. Whatever you do, never touch your gun while testifying.
Be early to court on the day you testify.
Sounding good is more difficult than looking good on the witness stand.
If you are new at the game, slow down. Rookies talk too fast. Listen to the question and just answer the question. If the prosecutor asks you what you think is a dumb question, do the best you can. You cannot make up for a prosecutor's mistakes.
Relax but don't be careless. Be confident but not cocky. Be assured but not arrogant. Be respectful, but not obsequious, servile, or fawning. I recommend that you not use the word "sir" at all. But if you do call the prosecutor "sir," then be sure to call defense counsel "sir." Otherwise, it looks like you are being disrespectful.
Lose the cop speak. It took me at least two years to lose the lawyer speak I was taught in law school. Departmental policy may dictate the words you use in your reports, but "policy" stops at the courtroom door. People do not "exit their vehicles," they "get out of their cars."
If the prosecutor wants to meet with you early to prepare you to testify, cooperate with him or her. Take advantage of it. If the prosecutor does not suggest the early meeting, then, if you have any doubts about the subject matter of your testimony, you should suggest the meeting.
Review all your notes before you meet with the prosecutor and again before you testify. If during an interview or during testimony, you think of something the prosecutor did not cover with you (either on or off the stand), bring it up during a recess.
Don't be intimidated by the prosecutor. Some young prosecutors are concerned about looking foolish, about sounding like they don't know what they are doing. So these inexperienced prosecutors try to sound like they know everything.
Here are some recommendations for how to handle some specific situations and questions.
Leading Questions—Leading questions begin usually with the phrase "Isn't it true that...?" Listen carefully. The defense counsel will include false facts in a long list of true facts. Your answer should be: "Not all of those facts are true." Force defense counsel to break down the question into its constituent parts. For example, if the defense asks, "Isn't it true that you put in your notes anything a witness tells you that you consider important?" Your answer should be: "I try to, but at the beginning of an investigation or when I am door-knocking, I don’t always know what is important and so sometimes a witness tells me something that, later, turns out to be important but does not show up in my notes.
"Why didn't you record your interview with the witness?"—Here's how to answer this question. "I did not record my interview with the witness for several reasons: Because I already had recorded on tape and/or extensively noted in writing my previous interviews with the witness, and during that last interview, the witness discussed his security concerns and/or information concerning other, unrelated investigations."
"May I have that document from the murder book/file?"—All documents in the murder book/file are "originals." Don’t hand an original document to defense counsel. Just tell counsel, in front of the jury, "I can't do that unless the prosecutor tells me it is OK."
The Defense Is the Enemy
Remember, the law treats prosecutors and defense counsel differently. Criminal defense attorneys are paid to advocate the innocence of those they know to be guilty. In contrast, it is unethical, if not illegal, for prosecutors to advocate the guilt of those they know to be innocent.
Don’t talk to defense counsel informally. Defense counsel is trying to screw you to the wall. If defense counsel intends to call you as a defense witness, ask what questions counsel will be asking you so that you can prepare. The law does not require the defense counsel to tell you the questions in advance, but if counsel does not tell you, mentioning that in court will explain to the jury why you need to keep referring to your report to refresh your recollection.
If defense counsel asks to speak with you informally, before putting you on the stand, just tell counsel, "I will talk to you if the prosecutor is present while we talk."
Don't begin answers with the words "I think" or "I believe." If you are not sure, ask for time to look at your report. If you still are not sure, don't guess. Say, "I don't know" or "I don’t remember." The few subjects that often require estimates, as opposed to exact answers, are time, distance, and dates. If you are not comfortable giving an exact answer, testify to the best estimate you can give, after determining that your written report does not have the exact answer.
You can control the pace of the questions by controlling the pace of your answers. That does not mean you should speak slowly. It means you should pause after defense counsel’s question before you begin your answer.
Defense counsel may ask you to state the name of your informant while you are on the stand. Your response is, "I will have to talk to the prosecutor." If the defense attorney asks you why you need to talk to the prosecutor, just say, "Because revealing the informant's ID might get the informant killed" or "revealing that informant's ID might jeopardize other, ongoing investigations."
If defense counsel tells you to answer the question "yes" or "no," you don't have to do that. You do not have to answer yes or no if the answer is or would be misleading. And that is what you should say.
Sometimes defense counsel will ask the same question several times maybe even using the same words or using slightly different words. Is defense counsel implying that your answer is not understandable? Does the defense believe you did not understand the question? Does the defense expect a different answer? It doesn't matter because you could not care less. Defense counsel is trying to confuse you and trying to get you to change your answer. When defense counsel asks you the same or a similar question, give the same answer. Use the same words in your answer. Do not think you have to change your answer.
Don't Screw Us Up
Sometimes officers save themselves embarrassment at the cost of our cases. That's disastrous for the good guys.
In one case, two college kids drove into Los Angeles to watch a volleyball game at a rec center. Neither was a gang member, but each was wearing blue. The rec center, unknown to the college kids, was in the middle of Black P-Stone Blood territory. Two Black P-Stone Bloods wearing red came into the gym, one armed with a handgun, the other unarmed. The unarmed gangster started a fight with the two college kids. The armed gangster shot both college kids, wounding one and killing the other.
A homicide detective, who lived near the college kids, took the original six-pack photo lineup out to the surviving witness on his way home. But the detective failed to follow standard procedure and did not make a copy of the original six-pack photo lineup for the witness to mark. The witness made an identification of both the "shooter" and the "puncher," but the detective failed to make a written note of those identifications.
In a later, sworn affidavit, the detective mixed up the identifications. My partner and I had split the "shooter" and the "puncher" for trial. First, we tried the person we thought was the "shooter" because of what we were told by the detective. However, the surviving witness testified that the defendant was the "puncher" and not the "shooter."
My partner and I retooled in the middle of trial and, thankfully, got a conviction of second-degree murder on the "puncher" as an aider and abettor.
Then we went to trial on the actual shooter. After the surviving witness identified the defendant as the actual shooter, the defense counsel called the detective to impeach our surviving witness with the detective's testimony that our witness identified the shooter as the puncher. The trial judge refused to allow murder charges to go to the jury and we wound up with a conviction of manslaughter on the actual shooter.
In another case an experienced homicide detective never showed the eyewitness a six-photo-pack. Defense counsel asked the detective, on cross-examination, "Why didn't you show the witness the six-pack you had prepared?"
The experienced homicide detective admitted he never showed the witness a six-photo-pack. Why? The detective testified, "I did not think the witness could make an identification." My partner and I looked at each other and whispered, "incredible."
We got the conviction and a death verdict anyway. But, the detective should have said, "I made a mistake. I forgot to show the witness the photo-six-pack."
The moral to both of these stories is that it's better to do things right than to be embarrassed, but it is better to be embarrassed than to harm the prosecution. When you violate your own policy, just admit you made the mistake.
There are times when detectives should not take "no" for an answer.
My partner and I were sitting in our office in the Major Crimes Division when two homicide detectives walked in, neither of whom we had worked with before, but one of whom we knew and respected.
The detectives told us that they had in custody a 19-year-old gangster who, they believed, committed three separate murders when he was just 15 years old. The detectives told us they had presented the three murders to a colleague of ours in the Major Crimes Division, and he had rejected outright two of the murders and had filed only one.
And in one murder, our colleague had allowed the gangster to plead down to a manslaughter with a promise of no more than six years in state prison. The detectives told us they were coming to my partner and me because they had heard we had experience prosecuting Mexican Mafia murders, and they believed the three murders were Mafia connected. They asked if we would review the three murder books and let them know what we thought.
My partner and I read the three murder books and spoke to our street gang experts and our Mafia experts. We wound up filing all three murders against the 19-year-old gangster, getting the manslaughter plea set aside, and convicting him on all three murders. Instead of the six years in state prison, he is doing 79 years to life.
I can't tell you how or when to seek the opinion of another prosecutor. My guess is it has to do with your reputation. Maybe it has to do with your reputation for skill, hard work, respect, and trust. It takes a while to build such a reputation and, once built, it must be protected.
Ruth A. Curry, my partner and a paralegal in the Los Angeles County District Attorney's Office, helped write this article.
Anthony Manzella retired after 25 years of service with the Los Angeles County District Attorney's Office. Before becoming a DA, he spent 13 years teaching trial advocacy at the Loyola (Los Angeles) Law Center.
How To Testify As a Gang Expert