Testifying -- Just answering the question! Part 2

When I used to try cases I would tell officers to just tell your "story."

Since you only have to testify about what you experienced with your five senses, that is all you can tell -- your story.

Often, in order to make the officer feel comfortable telling his / her story, I would ask the officer a question that would allow him / her to just talk to the jury. Some prosecutors and officers are better than others at this.

I must admit that if you feel comfortable while doing this -- look at the jury and explain your testimony.

Unfortunately, many times it looks phony to look at the attorney while he is asking questions -- and then turn and look at the jury to give your answer. For that reason, experienced prosecutors will often stand right next to -- or even behind -- the jury when they ask questions. That way, the officer is already looking at the jury during the question -- and then the answer.

In my opinion, if the questioning attorney is standing on the other side of the room from the jury, you should only address the answer to the jury if it is an explanation -- never on a one-word answer. And you should address the jury only if you feel comfortable doing that.

Jurors are well aware that you have to convince them of the truth of your answer.

Officers who are too slick -- too sycophanic (this means to "suck up to") -- or too mechanical -- usually turn jurors off. Just be candid.

My final advice is -- try to just be yourself -- and try to relax -- when you testify.
If necessary, try to picture yourself in a bar after a couple of drinks telling your story to your friends.
(Of course, don't REALLY DRINK those beers before you testify.)

Best -

DA

Testifying -- Just answering the question!

On August 1, 2007 I gave some testimonial suggestions -- if you read those suggestions, I hope you concluded that they were not the usual "commandments" that officers have heard for the last 50. They came from case law and criticism of prosecutors and judges.

In my opinion, a lot of the testimonial commandments you've heard are myths. The reason is that defense attorneys know that officers are instructed to testify a certain way -- so defense attorneys use those instructions against the officers -- sort of verbal judo in court!

Let me give you an example of this.

Two officers in two separate cases see a "one-hitter box" in a vehicle stopped during a traffic stop.
(A one-hitter box is a small box that holds drugs and a small pipe.)

The officers open the boxes -- and both see a pipe and drugs.

Now fast-forward to the suppression hearing. The issue as proposed by the defense attorneys in both cases was --

The defense attorneys in both cases ask the officers, "Can't you buy these boxes at tobacco stores?"
Both officers answered, "Yes."

Both defense attorneys then asked, "Couldn't there have been legal substances in the box?"

One officer answered, "Yes."
The evidence was suppressed.

The other officer answered (something like), "I've never seen any lawful substances in a one-hitter box."
The evidence was admitted.

So what is the myth the officer subscribed to in the first case that got the evidence suppressed?
Officers are always told by the prosecutor (their training officers) -- "Just answer the question.
Don't elaborate." Well that's what the officer in first case did.
Since the defense attorney knew that, he exploited it. (like verbal judo in court!)

The officer in the second case knew what the defense attorney was trying to do (get the officer to say he was just guessing that there were drugs and paraphrenalia in the box) and tricked the tricky lawyer by explaining that he indeed DID have probable cause in that it was "immediately apparent" to him that a one-hitter box means drugs.

Here are two or three of MY suggestions related to this issue -- to foil the tricky defense attorney.

1. If a defense attorney tells you to answer "yes" or "no" -- just start explaining your answer (unless you are sure the prosecutor is going to followup -- and bail you out).

If the attorney is so desperate that he has to tell you answer yes or no -- he's desperate to make you do so.

2. Don't answer questions that call for conclusions, speculation or opinions (e.g. "Couldn't the box have held lawful substances?") -- they are almost always tricks.

3. Answering "yes" or "no" usually just plays into the hands of the defense attorney.

I will do lots more of these testimonial suggestions in future blogs -- so stop back!

Best -

DA

Statutes That Officers Need to Get Passed

Officers in some states have excellent statutes to help and protect them. Officers in other states don't.

In Arizona, for example, officers have long had access to telephonic warrants, whereas in Illinois the statutes do not provide for telephonic warrants.

On the other hand, Illinois statutes provide for protection against common law torts by requiring that plaintiffs prove that the officers mental state rose to the level of wanton or willful. That is a very hard standard to meet.

Conversely, Arizona officers are not protected by this statute. They are liable for acts as insignificant as negligence.

I think officers deserve to have all the statutory support constitutionally available to them.

The reason officers don't have this support is because they don't unite and fight for their rights.

First, officers must fight to change Section 1983 -- at the federal level.

Second, (Illinois) officers should fight to change the electronic eavesdropping statute to permit officers to tape record their own conversations. Further, they should secure the enactment of a statute permitting the detention of suspects to gather physical characteristics. Finally, they should seek to enact a statute that permits the arrest of Terry suspects who refuse to give their names.

Third, (Arizona) officers should fight to change the mental state requirements of common law torts.

I'll talk more about this in future blogs.

Best -

DA

Can you arrest for theft without a "crime scene."

Here is the story -- Officers driving an unmarked vehicle in plain clothes see a guy, Richardson, across the street walking in the opposite direction they were going.

The officers observe that Richardson is carrying two power tool cases -- one in each hand.

The officers decide to investigate so they turn around and park along the curb near Richardson. As the officers got out of their car to talk to Richardson, he set the cases down and walked up to the officers.

An officer then questioned Richardson about the cases. Richardson at first said the cases belonged to his dad. Then he said they belonged to a friend. Then he said they belonged to him. Richardson could not identify the kind of tools in the cases. Finally the officer asked Richardson about markings on the cases -- "WNI." Richardson had no idea what the officer was talking about. (WNI was the company name of the owner -- Why Not Iron.)

The officer testified that the questioning lasted only a couple of minutes.

The officers then arrested Richardson.

Soon after this the officers learned that an employee of WNI had returned to his van about a block from the arrest and discovered that someone had stolen his tool cases.

The first issue is -- was the initial question and answer session a seizure? Richardson argued that he was seized when the officers refused to accept his answer that his father owned the tool boxes -- the police questioning became "accusatory and adversarial."

The court of appeals disagreed. The court held that questioning -- even "accusatorial and adversarial questioning" alone is not a seizure.

The second issue is -- did the facts constitute probable cause to arrest?

The court said yes -- even though the officers had not yet heard from the victim.

Note -- The officers looked into the tool cases. If a suspect / defendant ever tries to argue that this is an unconstitutional search, you should respond that a thief cannot have a reasonable expectation of privacy in property which he stole.

Best -

DAA

GANT -- The biggest case in about 20 years

Ok -- I believe I said in a previous blog that if the USSC took the Gant appeal (from the ARizona Supreme Court), it would be the one of the biggest 4th Amendment cases in history.

Well, I learned a few days ago that the Court has decided to hear the case. Apparently it will not be heard by the Court until the next term -- so for all of you non-Arizona officers out there, you will be able to search the passenger compartment of a vehicle after an arrest -- even if the arrestee is handcuffed ----- at least for one more year.

However, if the USSC rules that the search in Gant was unconstitutional, every officer in the United States will be forever barred from searching the passenger compartment under this theory.

As I mentioned, I think it will be a 5-4 decision.

Which ever way the Supreme Court rules, it will be one of the top 5 Fourth Amendment cases ever decided -- in my opinion.

P S --While I'm at it, I must apologize for not blogging for a while -- I have been out of state -- and could give lots of excuses -- I think instead I will just promise to try to do better.

BEst -

DA