WK4 DISCUSSION CHAIN OF EVIDENCE

The Presentation of Evidence

Allen J. schaben/Los Angeles Times/Getty Images

/

OBJECTIVES

After reading this chapter you will be able to:

• Describe the court process as an adversarial process and explain the role of defense attorneys, prosecuting attorneys, judges,

and the police in the process.

errors can lead to miscarriages of justice.

• Discuss the purpose of the

· cross-examination and evaluate

the tactics commonly used

• Discuss the importance and value of a vigorous defense for defendants.

• Define the role of lay and expert

witnesses in court and discuss

the controversies associated

with using experts in court.

by defense attorneys when cross-examining investigator

witnesses.

• Explain the various ways in

which police misconduct and

• Identify the steps or stages of the trial process and discuss the two main questions addressed

in a trial.

• Identify the guidelines regarding testimony in court.

From the CASE FILE A Tragedy and Then More 1

on July 29, 1985, at approximately 3:00 p.m., Penny

Beerntsen and her husband were at the Lake Michigan

Beach in Manitowoc county, Wisconsin. Penny went for a jog by herself on the beach. Along the way

she passed a man wearing a black leather jacket, which she thought was odd given that it was a hot

summer day. on the way back to where her husband

was waiting for her, she saw the same man again.

As she attempted to run past the man, he grabbed her and dragged her into the woods, then beat and sexually assaulted her, and left her for dead. But Penny survived . Fingernail scrapings were collected from Penny, and a sexual assault exam was conducted,

which resulted in the collection of pubic hair foreign to the victim .

Penny was also able to provide a description of the assailant to the police: She stated the attacker was approximately 5' 6"-5'7" and stocky, with brown eyes and long sandy hair. She also mentioned the black

leather jacket. Upon hearing this description, an officer

in the department thought the description sounded

like a person she was familiar with: Steven Avery. She knew Avery because of an earlier incident in September 1984 when the police were called because Avery was having sex with his wife in their front yard in the middle of the day. The caller was the wife of a fellow officer. In apparent retaliation, in January 1985 Avery ran this woman off the road and threatened her

with a shotgun. Based on Penny's description of the

attacker and the deputy's familiarity with Avery, Avery

was arrested for the attack on Penny.

A photo lineup containing nine photos was prepared and shown to Penny. After looking at the photos, she identified Steven Avery as the man who had attacked

her. A live lineup was then assembled with eight men,

and Penny again selected Avery. He was the only

person who was in both lineups.

A few weeks after the lineup and arrest of Avery, the

Manitowoc Police Department communicated with the district attorney's office and the Manitowoc County

Sheriff's Department that they believed a person by

the name of Gregory Allen may have been responsible

for the attack on Penny. They reported they had surveillance on Allen for another investigation, but not on July 29. No action or further inquiry resulted from this information.

At trial, the prosecution presented Penny's eyewitness

identification and testimony from a forensic examiner

that a hair recovered from a shirt of Avery's was consistent with Penny's hair. In his defense Avery presented sixteen alibi witnesses, including a store clerk. A receipt from Avery's purchase at the store was stamped at 5:13 p.m. With the attack occurring at 3:50 p.m. and lasting fifteen minutes, this meant that

Avery would have had to leave the scene of the attack,

438 CRIMINAL INVESTIGATION

PHOTO 15.1: Booking photo of Steven Avery taken at Manitowoc Sheriff's Department on 30th July, 1985.

walk a mile to the nearest parking lot, drive home, and drive forty-five miles to the store all in just over an hour. The jury deliberated for four hours. Steven Avery was found guilty and sentenced to thirty-two years in prison.

In July 1995 a woman was sexually assaulted in her home in Brown county, Wisconsin. A man by the name of Gregory Allen was quickly identified and arrested. He was later convicted and sentenced to sixty years in prison for the assault. Soon after the arrest, a sheriff's deputy in Manitowoc county received a phone call from investigators in Brown county. He was told that an inmate had confessed to a sexual assault in Manitowoc in 1985 for which another person had been found guilty. Nothing was done with this information until 2003.

In 1996 the sexual assault evidence kit from the Beerntsen crime was reexamined via DNA analysis. The results showed the presence of a DNA source not linked to Penny or Avery. In spite of this evidence, a new trial was denied, and Avery remained in prison.

In 2002 the Innocence Project obtained a court order to test the pubic hairs recovered from Penny after the assault. The state laboratory reported that the DNA profile obtained from this analysis was linked to Gregory Allen, the man serving a prison sentence for the 1995 assault. Gregory Allen and Steven Avery looked strikingly similar. In 2003, after serving eighteen years in prison, the charges against Avery were dismissed, and he was released. The day after Avery was released from prison, the deputy who in 1985 received the phone call and information about the possible wrongful conviction of Avery wrote and submitted to his department a statement about that phone call.

In December 2003 the Wisconsin State Legislature recommended that Steven Avery receive $450,000 in wrongful conviction compensation. The next year Avery filed a lawsuit against the Manitowoc County Sheriff's Department for $36 million ($18 million for targeting him, personal hostility, and obstruction

Chapter 15 • The Presentation of Evidence 439

of justice, and another $18 million in punitive damages). Depositions of people employed in the sheriff's department and others associated with the investigation began in May 2005. In the depositions of Wisconsin Department of Justice special agents Amy Lehmann and Debra Strauss, Lehmann testified that "it appear[ed) that there was no real investigation done" and that the police "had a suspect and they were going to make it work." Strauss also stated that "the sheriff told the DA not to screw this one up because the sheriff wanted Avery convicted of this crime."2

2005, a young woman by the name of Teresa Halbach disappeared. Her charred remains were found at and around Avery's property. Avery was arrested, charged, and convicted of her murder. He was sentenced to life in prison without the possibility of release. The Netflix documentary Making a Murderer chronicled the trial and examined the evidence collected

With depositions continuing and Steven Avery on his way to becoming a multimillionaire, on October 31,

in the investigation. Due to numerous apparent inconsistencies in the investigation, many people believe that evidence was planted by the police and Avery is not the person who killed Teresa Halbach. Motions for a new trail continued as of this writing in September 2017.

case Considerations and Points for Discussion 1. What evidence led to the identification, arrest, and

conviction of Steven Avery as the perpetrator of the sexual assault?

2. What mistakes did the police make in conducting this investigation? If not for these mistakes, do you think Avery would have been arrested and convicted?

3. something can be learned from every investigation- more from some investigations than others. What do you think should be the biggest lessons learned by the police as a result of the investigation, conviction, and vacated conviction of Avery?

M ost of this book has been devoted to a discussion of how criminal investigations should be conducted, how evidence should be collected, the role and functions of evidence, the strengths and weaknesses of evidence, and the collection of evidence

in particular types of crimes. This chapter takes a different focus . This chapter discusses issues relating to the presentation of evidence in court through testimony. It also examines the trial process and the outcomes of that process.

The information in this chapter is important for students of criminal investigation for at least four reasons. First, the identification and apprehension of offenders is not the end of the criminal justice process. As discussed in Chapter 1, in order to achieve a reduction in crime, offenders have to be deterred or incapacitated, and this largely depends on successful court outcomes, not just on arrests. Arrests are a good start, but convictions are what really matters. Successful prosecutions are based on good evidence and, as such, successful pros­ ecutions depend on competent and thorough investigations. Consequently, investigators should be knowledgeable about the process involved in adjudicating offenders and obtain­ ing convictions.

Second, to be most effective, police investigators should be as familiar with the court pro­ cess as they are with the criminal investigation process. They should feel as comfortable and competent on a witness stand as they do at a crime scene. Again, this is simply because the job of investigators does not end with an arrest being made. They have important respon­ sibilities in assisting the prosecutor in preparing the case for court and testifying.

Third, investigators must understand that although they play an important role in the pros­ ecution of offenders, many other people do as well. If a case results in a bad outcome (e.g., a guilty defendant is not convicted or an innocent defendant is convicted), investigators should be able to maintain perspective. They may or may not share responsibility for that outcome.

440

Adversarial process: A way to describe the court process In this country; the prosecution and defense are opponents, each highlighting certain evidence in the case, and the judge is the referee.

CRIMINAL INVESTIGATION

PHOTO 15.2: Defense attorneys question investigators about how they conducted an investigation. Investigators must be prepared to answer these questions.

Finally, and relatedly, given the seriousness of a conviction and what happens to offenders upon conviction, investigators should appreciate the tragedy of bad judicial outcomes, regardless of who is responsible for those outcomes. The work of criminal investigators is extremely important and mistakes can be tragic. Investigators must understand the serious­ ness of their work.

• • • The Adversarial Process The court process in the United States is an adversarial process. It can be viewed as a con­ test or even a game, a serious one, in which defense attorneys and prosecuting attorneys are opponents, adversaries. Defense attorneys and prosecuting attorneys present conflicting arguments, or conflicting versions of the truth, in court in an effort to win the game. The judge is supposed to be a neutral referee in the contest, making sure the rules of the game are enforced fairly. Police investigators are a part of the prosecution team. The role of inves­ tigators is to collect the evidence in the case and, on the basis of probable cause, to identify and apprehend the individual who committed the crime. The prosecution then presents evidence collected by the police in court to convince a judge or jury, beyond a reasonable doubt, that a crime occurred and that the defendant committed it.

The role of the defense attorney is to probe, test, and question the evidence presented by the prosecutor. Defense attorneys provide alternative explanations for the prosecution's

Chapter 15 • The Presentation of Evidence

evidence and present other evidence in an attempt to establish reasonable doubt. This tests the quality and integrity of the evidence in the case and protects the defendant's interests. As such, the provision of a legal defense is no less important for a guilty defendant than it is for an innocent one. After all, it is only through the legal process that it is determined who is guilty and who is not. As stated by famed lawyer Alan Dershowitz, "defending the guilty and the despised-even freeing some of them-is a small price to pay for our liberties. Imagine a system where the guilty and the despised-or at least those so regarded by the powers that be-were not entitled to representation!" 3

At times it may seem that the prosecution team is at a disadvantage in the game. The bur­ den of proof to establish beyond a reasonable doubt that a crime occurred and that the defendant committed it is entirely on the prosecution; defense attorneys do not have to prove anything to win. The prosecution and the police have to follow and abide by numer­ ous rules in collecting and presenting evidence; defense attorneys can develop alternative explanations for this evidence. Furthermore, the prosecution has to share all evidence col­ lected by investigators in the case with the defense counsel. However, although the prose­ cution does indeed face some disadvantages, it also has some major advantages. Most important, the prosecution has the full authority and power of the government on its side, including the police department. The prosecution usually has significantly more resources at its disposal for evidence collection, analysis, and presentation, and it can afford trial consultants, expert witnesses, and a legal staff. Only with the relatively rare wealthy defen­ dant are the players in equal standing in terms of resources available.

Police officers and investigators often express contempt toward the judicial process and defense attorneys in particular. Some studies have shown that dealing with the courts, and testifying in particular, is one of the more stressful aspects of a police officer 's job.4 One reason for this is that judges and defense attorneys are in a position to review and question the actions of police officers. Defense attorneys often test the evidence in the case by testing the police. As such, police investigators may see defense attorneys as being on the side of criminals and as an obstacle to justice. Clearly, defense attorneys are adversaries to the police/prosecution team.

Although perhaps problematic from the perspective of individual officers, from a judicial perspective, the process of testing the evidence is necessary to increase the chances of a fair and just outcome. The lack of a vigorous defense is one of the common features in many miscarriage-of-justice cases. It must be noted, however, that an adequate test of the evidence through a vigorous defense is still not a guarantee that fairness and justice will prevail. Defense attorneys may mount a vigorous defense and their clients may still be convicted for crimes they did not commit. In addition, albeit on probably quite rare occasions, a vigorous test of the evidence can actually result in justice being denied- in a guilty subject being set free. Because all defendants-both guilty and innocent-are entitled to a vigorous test of the evidence, this is a risk that is inherent in the process. However, most would argue it is a small price to pay for our civil liberties. It is the nature of the game.

• • • Errors in Justice Outcomes THE SERIOUSNESS OF ERRORS IN JUSTICE OUTCOMES

A miscarriage of justice, be it in the form of an innocent subject being punished or a guilty subject going free, is a serious issue. If a guilty person goes free, that person has avoided punishment, and justice is denied for the victim and for society. That person is also free to offend again. If an innocent person is convicted, it will have devastating effects on that person's life. It is impossible to even begin to imagine the horror: being interrogated, arrested, handcuffed, booked, searched, jailed, appearing in court, the tr ial, the conviction, prison for a night, for a week, for a month, for a year, for a decade . .. all for a crime you

441

Miscarriage of justice: An expression referring to an incorrect judicial outcome; an innocent person is convicted or a guilty person goes free.

442 CRIMINAL INVESTIGATION

did not commit! Is there a worse nightmare? If that is not bad enough, when an innocent person is arrested and convicted, it means that the person who actually committed the crime is still free to offend, possibly raping, robbing, or murdering more victims, as in the case described in the introduction to this chapter. Criminal investigators should keep this in mind every day. Investigators should be passionate about their work but also understand the seriousness of it. It is absolutely imperative that criminal investigations be conducted properly because the consequences of bad investigations can be devastating.

REASONS FOR ERRORS IN JUSTICE OUTCOMES

According to the National Registry of Exonerations, between 1989 and 2017, 2,000 post­ conviction exonerations occurred in the United States.5 Although this is just a miniscule fraction of all convictions, this humber makes it clear that justice in the criminal justice system is not a guarantee. These 2,000 cases involved people being convicted of crimes (mostly murder and/or rape} and serving time in prison before DNA testing or other evi­ dence established that they had not committed the crime. Most of the 2,000 convictions occurred in the 1980s when biological evidence was often collected and saved but DNA analysis was not yet used. These errors occurred for a variety of reasons; many cases had more than one cause. An analysis of the cases revealed that approximately 56 percent of them involved perjury or a false accusation on the part of a citizen, 51 percent involved official (police and/or prosecutorial) misconduct, 30 percent involved a mistaken eyewit­ ness identification, 24 percent involved false or misleading forensic examination, 15 percent involved an inadequate legal defense, and 12 percent involved a false confession.6 No doubt, justice depends on the competent and conscientious efforts of everyone involved in the process: investigators, prosecuting attorneys, defense attorneys, judges, and juries. The most significant factors that can lead to a miscarriage of justice are discussed here.

POLICE MISCONDUCT AND ERRORS

As noted, police misconduct and/or incompetence is relatively common in false conviction cases. There is no question that when the police are reckless or neglectful in searching for and collecting evidence, carry out illegal searches and seizures, conduct inadequate inter­ views of witnesses, use incorrect or misleading methods of eyewitness identification, or use coercive interrogation techniques that lead to false confessions, the evidence collected in the case will be of poor quality. Bad investigations produce bad evidence, which may contribute to bad outcomes. However, there is no evidence to suggest that police misconduct and incompetence are common in criminal investigations in general. The point of the discussion here is to call attention to the disastrous consequences of misconduct and to emphasize the importance of understanding and following proper investigation procedures.

On occasion, accounts of investigative misconduct by the police do come to light. The instances that are widely publicized are, not surprisingly, quite shocking. For instance, between 1984 and 1992, a group of state troopers from New York was found to have fal­ sified fingerprint evidence on a widescale basis. According to prosecutors, in one double murder case, an investigator lifted a suspect's fingerprint from the metal rim of a fingerprint cardholder and then testified in court that he had found the fingerprint on a countertop at the crime scene. The defendant was convicted and sentenced to fifty years to life in prison. Several of the investigators in this case were convicted and sentenced to prison for their illegal conduct once it was discovered. 7

A group of detectives who worked in the in the Chicago Police Department during the 1970s and 1980s were found to have tortured suspects for confessions through methods such as beatings, shocks with cattle prods, near suffocations, and mock Russian roulette. The convictions in some of these cases have since been invalidated. In one of these, Shawn Whirl had confessed to a murder he did not commit after a detective repeatedly slapped him, used a key to inflict pain in an existing wound while muffling his screams, and threat­ ened him with the death penalty. Whirl had pled guilty and been sentenced to sixty years. 8

Chapter 15 • The Presentation of Evidence

In 2016 the U.S. Department of Justice released a report into its investigation of the Baltimore Police Department. Among the findings was that officers had conducted sixty illegal strip searches of citizens over a six-year period. 9 If it is discovered those illegal searches led to evidence and convictions, those convictions are likely to be invalidated.

Also in 2016 the City of Los Angeles agreed to pay $24 million to two men imprisoned for decades after wrongful convictions-convictions obtained in part due to the misconduct of investigators.10 In one of these cases, Bruce Lisker was convicted in 1983 of murdering his mother; he was seventeen at the time. After completing his prison sentence of twenty-six years, he filed a lawsuit against the city, which prompted a review of the evidence in the case (e.g., shoeprints, testimony of a jailhouse informant) and the conduct of the investigation. Of particular interest was a letter written to the parole board by the investigating detective claiming additional evidence existed to support the conviction when in reality there was none. Upon notification of the award in 2016, Lisker stated,

The toll this ordeal has taken on me and my family is incalculable. The money is nowhere near enough. How can one place a monetary figure on a lifetime of stolen freedom, of crushed aspirations and a shattered reputation, on my mother's tragic murder going unsolved and neglected for 33 years and counting? There are no words, just as there is no amount that can adequately compensate me for what happened. 11

Police misconduct also played a role in the case of Eddie Joe Lloyd (see Case in Point 15.1).

Not only might actual investigative misconduct (or errors) lead to a bad outcome, but so too might perceived misconduct on the part of the police. Sometimes the perceived

443

on January 24, 19.84, Michelle Jackson, sixteen, did not return

to her Detroit home after school. Her family formed a search

party and followed her path from the bus stop. They found her

body in an abandoned garage. She was nude from the waist

down, and her long johns underwear was twisted around her

neck. The murder received much publicity, as did the fifty other

assaults on young girls that had occurred in the months prior to

it. Shortly after the murder, Eddie Joe Lloyd, a psychiatric patient

at a hospital in Detroit, began writing letters to the Detroit police

about the murder and providing suggestions to them about

how to solve it, and other, homicides. The police interviewed

Lloyd four times at the hospital and eventually obtained a con­

fession from him about the murder of Michelle Jackson. The

account he provided to the police contained details about the

crime that only the killer (and the police) would have known,

such as the type of jeans the victim was wearing, a description

of her earrings, and other details about the crime scene. Lloyd

signed a written confession and also provided a tape-recorded

confession. The confession and the physical evidence (semen

found on the long johns, on a bottle that was forced into the

victim, and on a piece of paper that was stuck to the bottle)

were presented by the prosecution at trial.

However, in the days leading up to the trial, Lloyd began to

state he had not committed the crime; he maintained that

the details of the crime contained in his confession had been

provided to him by a detective on the case. According to

Lloyd, detectives had led him to believe that by confessing

it would assist the police in finding the real killer. Not even

Lloyd's attorney believed him. Lloyd's attorney provided

a limited defense that consisted only of the unsuccessful

attempt to have the confession ruled inadmissible and an

attempt to get Lloyd to plead insanity. He conducted minimal

cross-examination of prosecution witnesses and called no

witnesses of his own. The jury deliberated less than an hour

before finding Lloyd guilty offirst degree felony murder and

sentencing him to life without parole. All his appeals failed.

In 1995 the Innocence Project obtained the biological evi­

dence in the case and had it subjected to DNA analysis. The

DNA profiles obtained from each of the items matched each

other but did not match Eddie Joe Lloyd. Lloyd was not the

perpetrator. His conviction was vacated in 2002 after he had

served seventeen years of his sentence.12

444 CRIMINAL INVESTIG ATION

Why Is it Okay to Lie sometimes but Not Other Times?

misconduct does not even relate to the case at hand but to an entirely different issue or case. Misconduct by an officer in one investigation may imply misconduct by

that officer in his or her other investigations as well. This misconduct might be a basis upon which a defense attor­

ney could discredit an investigator in court and cast a shadow over the proper conduct of a particular investigation. This can have major implications for officers and their careers.

The rules for proper investigative conduct

vary by the situation. For example, while it is legally acceptable for investigators

to lie to suspects on the street and in the interrogation room (with some limits), it

is not legal for them to lie on reports, to supervisors, or in court when providing testimony. Why is this so?

Specifically, the 1963 U.S. Supreme Court case Brady v. Maryland and other subsequent related cases have held that evidence of officer credi­ bility as a witness may be considered exculpatory evidence and should be given to the defense during discovery. In other words, if there is evidence in an officer's personnel file that he or she was untruthful regarding any police-related matter, that evidence could be used in a defendant's defense. Ultimately, the judge in the case will determine

whether the evidence of the officer's untruthfulness is admissible in court, but the point is that it could be and could cause major difficulties for the prosecution. Due to this, if an officer's deception is deemed serious enough to document and discipline, there is justification for that officer to be fired. Honesty is critical for police officers.

As an example, consider again the investigation of the murders of Nicole Brown Simpson and Ron Goldman (Chapter 5 and Chapter 7). An overwhelming amount of evidence was collected in the investigation that pointed to 0. J. Simpson as the killer. This mountain of evidence was undermined by police perjury and incompetence and by strategic lawyering on the part of the defense attorneys. Defense attorneys successfully argued that Simpson was framed by Detective Mark Fuhrman, who had assisted in the investigation and found the bloody glove on 0. J.'s property (recall that the matching glove was found next to the bodies at Nicole Brown Simpson's house). Fuhrman denied under oath during questioning by the prosecutor at trial that he had previously used the "n-word" and made statements condoning racism and police brutality. These allegations were subsequently proved to be true, however, by the defense attorneys via audiotapes of Fuhrman discussing policing in the LAPD. After these revelations came to light, Fuhrman was once again called as a witness at the trial but by the defense this time. While on the witness stand, he asserted his Fifth Amendment right to not answer any questions about his previous statements or his actions in the investigation. Fuhrman was subsequently charged with perjury. He pleaded no con­ test and was fined $200 and sentenced to three years of probation. He resigned from the LAPD. With a charge of perjury his career as a police investigator was done.

But did Furman's use of the "n-word" and his lying about it have anything to do with the Simpson investigation? The critical question that the jurors had to consider was, if Fuhrman was a racist and had lied in court about his previous actions, what else might he be lying about? Maybe he did plant the glove on Simpson's property. Maybe other evidence was also planted.

PROSECUTOR/AL MISCONDUCT AND ERRORS

Another reason for bad judicial outcomes is prosecutorial misconduct and incompetence. Prosecutors exercise considerable discretion in deciding how cases should be processed and prosecuted. When this discretion is abused or incompetently used, when exculpatory evi­ dence is suppressed, when evidence is destroyed, when witnesses who are known to be unreliable and to be offering perjured testimony are used, or when evidence is fabricated, the rules of the game are violated and justice may likely be sacrificed.

DEFENSE ATTORNEY MISCONDUCT AND ERRORS

The U.S. Constitution requires that those individuals accused of crimes be afforded legal counsel and be provided a vigorous defense. As noted earlier, without this ingredient, the

---------

Chapter 15 • The Presentation of Evidence

adversarial process ceases to exist, and the game becomes totally lopsided. If there is no possibility that the evidence in a case will be tested, police and prosecutors may misbehave with impunity, and an unjust outcome may be the result. This issue is of most concern for defense attorneys who represent indigent clients. Incredibly packed caseloads that prevent attorneys from spending the time on each case that it requires are common. Lack of time to prepare a defense may have obvious implications. At the other extreme, it is also possible that a defense can go too far.

The case of Jimmy Ray Bromgard illustrates the extreme of defense counsel incompetence. Bromgard was convicted of raping an eight-year-old girl and was sentenced to forty years in prison. After already serving nearly sixteen of those years, he was exonerated on the basis of DNA testing that proved he did not commit the crime. During Bromgard's original trial, his attorney conducted no investigation, did not give an opening statement, did not prepare a closing statement, questioned no witnesses, did not file an appeal, and presented no expert testimony to refute the (fraudulent) testimony of the prosecution's forensic expert witness. Besides this forensic testimony and a tentative identification of Bromgard by the witness, there was no evidence against Bromgard.13

JUDICIAL MISCONDUCT AND ERRORS

We all know what happens when referees are biased and favor one team over the other: The game is no longer a fair one. So it is with the game of justice. Judges who allow police, prosecutorial, or defense misconduct are working against the desired outcome of justice. Judges are generally reluctant to enforce the technicalities of the law and to take action against prosecutors and the police (e.g., for perjury).

EXPERT WITNESS MISCONDUCT AND ERRORS

The testimony provided by experts in court can be quite influential on the final outcome of a case. Ideally, experts are supposed to provide their opinions to educate the jury about some issue with which jury members are not likely to be familiar. However, given the rates of compensation and how experts are hired (see the following discussion), some expert witnesses may be more like hired guns than purveyors of the truth. Of course, it is also possible that experts may simply provide incorrect (but influential) testimony. For example, Andrea Yates, a mother convicted and sentenced to life in prison for drowning her five young children in the bathtub of her Texas home in 2001, was ordered to receive a new trial because of faulty expert witness testimony. The state's forensic psychologist expert testified Yates was not insane at the time of the murders. He explained a similar crime had been portrayed on an episode of Law and Order, and the defendant in that episode had been found insane. The expert implied that Yates may have gotten the idea for the crime from the show. However, no such episode existed. 14 In another case, in 2012 it came to light that a chemist in Massachusetts had falsified drug tests and tampered with evidence in 20,000 cases. In 2017 the associated convictions were tossed out, making it the single largest dis­ missal of wrongful convictions in United States history. The chemist in question was sen­ tenced to three to five years in prison. 15

PERJURED AND UNRELIABLE TESTIMONY BY LAY WITNESSES

Witnesses may have a variety of reasons for providing intentionally misleading or errone­ ous information to the police. These reasons could include a desire to get revenge on an enemy, to cover one's own illegal behaviors, to avoid embarrassment, or to protect a loved one. In addition, even well-meaning witnesses have the ability to provide seriously mislead­ ing information, particularly through eyewitness identification testimony. Examples of faulty eyewitness testimony are plentiful, and the ramifications of those identifications are clear when reviewing cases of false convictions. As discussed in Chapter 6, this problem can be at least partially remedied by changes in eyewitness identification procedures.

445

446

E 8 ~ z ;;; ·c: cu

~ Qj c '-"' c 8l 0 D c cu

Q c

~ c '.3 D 0 u ~

CRIMINAL INVESTIGATION

"' 2S41

' I U~l

I \ 11 152\ " ' ~li\

'"'

PHOTO 15.3: Lay witnesses often play a critical role in investigations and as witnesses in court.

INEPT JURIES

Another possible reason for a wrongful conviction is an inept jury. The trial process depends heavily on juries to consider the evidence in the case conscientiously and carefully and reach a decision based on instructions provided by the judge. In many respects the jury is the final link in the justice chain. If the jurors do not make decisions in good faith, bad outcomes may result. Good faith may be inhibited by fear for personal safety, fear for the safety of others, or concern about the ramifications of the verdict. Jurors may also be affected by extraneous information and evidence. It is important to remember that juries almost always play a passive role in the trial process. They are there to hear and consider the evidence as it is presented. Jurors can only work with the evidence they are presented.

• • The Value and Importance of Investigative Testimony All evidence presented in court is delivered through or accompanied by testimony­ statements made in court by individuals sworn under oath to tell the truth. Witnesses pro­ vide testimony. Witnesses can be classified as either lay witnesses or expert witnesses. Lay witnesses can testify only to the facts of the case as they see them, and to their actions and observations. To the extent that judgments can be offered by lay witnesses, the judgments are related to the particular case at hand, such as when a witness says, "In my judgment, he was intoxicated when he said he was going to kill her. He was slurring his words." Police officers and investigators are usually, but not always, considered lay witnesses in court. Expert witnesses, on the other hand, can express their opinions in court and can discuss hypothetical scenarios. Expert witnesses are usually persons who are skilled or knowledge­ able on a particular subject. Their testimony is supposed to educate the jury or judge on a particular issue that may not be well understood by lay persons. An expert's opinion is advisory to the jury.

Chapter 15 • The Presentation of Evidence

•• • Expert Testimony The use of expert witnesses in court can be controversial. Expert witnesses are most often hired and compensated by either the defense counsel or the prosecution. In trying to advo­ cate either the guilt or innocence of the defendant, the attorneys, of course, desire testimony from an expert that supports their respective position. It is likely that if an expert is not able to offer a supportive opinion, the attorney will look for a different expert who can provide such testimony. As such, if an expert witness cannot offer testimony to support the attor­ ney's position, that expert will not be hired. Although one may legitimately question the appropriateness of this arrangement, what is even more problematic is that experts may have considerable economic reasons to conform their opinions to the position of the attor­ ney who is requesting the testimony. It is common for expert witnesses to receive $300 to $600 an hour or more for their work on a case, depending on the issue at hand and the expert's credentials.

Seldom are scientific opinions uniformly and unambiguously supportive of a one-sided conclusion. Attorneys who request the testimony of experts must realize that this is the case. Accordingly, the most desirable and ethically defensible role for the expert is that of an impartial educator who comes to a conclusion and provides testimony based on a well-informed understanding of the issue in question. In practice, the expert's testimony supporting the desired position is usually elicited during the direct examination of the witness, and a more balanced view emerges as the result of the cross-examination. In addition, jurors and judges may find the background, experience, credentials, and expertise of an expert w itness relevant in judging her or his credibility and believability.

The use of expert testimony in court is also potentially problematic for other reasons as well. In particular, the sometimes-complicated opinions offered by the expert may be mis­ understood by jurors. Indeed, because testimony of an expert witness may be shaped by the questions asked by the prosecution and defense attorneys, there is considerable opportunity for testimony from even a well-intended impartial expert to be misunderstood. In addition, an expert could provide an accurate opinion based on the available scientific research on an issue, but this opinion could be invalidated in the future by subsequent research. In essence, how can experts testify regarding the "truth" when "truth" in science is always changing? For example, it was once believed that bite mark evidence could be individual­ ized or matched to a particular person. Now the analysis of bite mark patterns is considered so weak that there are recommendations to exclude such evidence from court.16 An under­ standing of all the concerns mentioned here may provide a better appreciation of the role of expert testimony in the legal process.

• • • Testimony of Investigators As noted, investigators are usually considered lay witnesses in court. Their primary role is to describe their investigative activities and the evidence that resulted from those activities. However, forensic scientists who perform analyses on evidence in cases are best considered expert witnesses even though providing testimony is a regular part of their job. In many ways the relatively limited scope of a lay witness investigators' testimony makes his or her job in court a little easier. As lay witnesses, investigators do not have to form, justify, or defend their opinions. As lay witnesses, they are required to not express their opinions. They just have to tell the truth. Nevertheless, the testimony of investigators in court is crit­ ical. The lead investigator is often one of the most important witnesses in the presentation of the prosecution's case. Without a believable or credible investigator, a conviction will likely not be possible.

447

448

Voir dire: The process of selecting a jury for a trial.

Direct examination: The direct examination elicits testimony from a prosecutor's witness through questioning by the prosecutor or from a defense witness through questioning by the defense attorney.

TESTIMONY AT THE DEPOSITION, PRELIMINARY HEARING, AND TRIAL

CRIMINAL INVESTIGATION

There are three situations in which investigators may be required to provide testimony relating to the investigations they conducted. First, investigators may be required to provide testimony in a deposition. Depositions are common in civil cases but not in criminal ones. A deposition occurs out of court and before a trial. It provides a lawyer the opportunity to question a witness under oath to learn what testimony that witness may provide in court. A commonly stated rule for attorneys is to never ask a question in court to which they do not already know the answer. A deposition allows attorneys to find out answers to ques­ tions prior to court. Depositions can be stressful for witnesses because the scope of the questioning can be wide; there is basically no topic or issue that is off-limits. As a result, depositions often take much longer than testimony provided in court. Along with written reports, defense attorneys can attempt to use deposition testimony to contradict the court­ room testimony of investigators.

The second and more common situation in which investigators may be required to provide testimony is in a preliminary hearing. A preliminary hearing is one of the first steps in the court process. It can be described as a mini-trial. The purpose of the preliminary hearing is for the prosecutor to prove that a crime occurred and that the defendant committed it. The standard of proof is probable cause, the same standard as in an arrest. However, in a pre­ liminary hearing, the probable cause is determined by a judge. Because the standard of proof is lesser at the preliminary hearing than at the trial, less evidence needs to be offered at a preliminary hearing. Many times the evidence includes only testimony from the victim and the police officers or other investigators who conducted the investigation.

If the judge determines there is probable cause that a crime occurred and that the defendant committed it, and if there is not a plea bargain agreed upon by the prosecution and the defense, then a trial will occur. Investigators will also provide testimony at the trial. A trial may either be a bench trial, in which the judge determines the verdict, or a jury trial, in which a jury determines the verdict. A typical trial has several steps or stages:

• The j ur,y is selected; this process is also known as voir dire ( vwar 'dir).

• The prosecution gives an opening statement in which it presents an overview of the evidence that is supposed to lead the jury to a "guilty" verdict.

• The defense attorney gives an opening statement that explains why the jurors should arrive at a "not guilty" verdict.

• The prosecution presents its case though direct examination of witnesses; after each witness the defense attorney can cross-examine the witness. There may also be a redirect and a re-cross-examination of any or all witnesses.

• The defense presents its case through a direct examination of witnesses; after

each witness the prosecuting attorney can cross-examine the witness. There may also be a redirect and a re-cross­ examination of any or all witnesses.

• A closing statement is first presented by the prosecution then by the defense. Each closing statement is a summary of the evidence presented and an explanation as to why a "guilty" verdict or a "not guilty" verdict should be reached.

• Instructions are given to the jury by the judge that explain what the jurors are expected to do and the decisions they need to make.

• The jury deliberates in private.

• The verdict is read in court with the defendant and attorneys present.

Investigators almost always testify as part of the prosecution's case, so the prosecuting attorney conducts a direct examination of the investigator to elicit the facts of the case and the corresponding evidence against the defendant. Questions asked of investigators during

Chapter 15 • The Presentation of Evi dence

the direct examination usually begin with who, what, when, where, how, and sometimes wiry. At the conclusion of the direct examination, the defense attorney has the opportunity to question the investigator in a cross-examination.

THE CROSS-EXAMINATION

To "test" the evidence, defense attorneys often "test" the police. This test occurs during a cross-examination when the defense attorney asks questions_ of the investigator. This is the opportunity for the defense attorney to score points with the prosecutor's evidence. The cross-examination is usually the most difficult, frustrating, and stressful aspect of testifying. The best way to overcome this is to understand the tactics of defense attorneys and be prepared for them.

The goal of the cross-examination for the defense attorney is to convince the jury or judge that the investigator should not be believed or that certain evidence presented by the inves­ tigator should not be believed. In essence, the goal is to impeach the witness. A defense attorney can attempt to impeach a police witness in several ways. 17 First, the defense attor­ ney may use leading questions in an attempt to put words in the witness's mouth. Leading questions suggest the answer in the question itself. To the weary and poorly prepared, leading questions can make answering questions easier. But the easy answers may very well be incorrect. Questions that begin "Isn't true that ... "or "Wouldn't you agree that ... "are questions that are designed to prompt certain answers. Investigators must be aware of this tactic and that it could potentially signal trouble ahead.

Second, the defense attorney may try to anger, badger, or simply annoy the investigator. As discussed in the following, emotion on the part of the investigator can undercut his or her believability.

Third, the defense attorney may ask difficult and slanted questions of investigators where the answer may not necessarily sound good. Examples include the following: "Have you ever made a mistake in an investigation?" "Have you lied before?" and "Have you rehearsed your testimony with the prosecutor?" These and all other such questions should be answered truthfully. Honesty translates into credibility among jurors. If there is an objec­ tion or clarification that needs to be made, that should be left to the prosecutor.

Fourth, the defense attorney may question the witness about the legality of the actions taken, the investigator's knowledge of the law, the legal justifications for the actions taken, or knowledge of proper investigative and evidence collection procedures. These lines of questioning can be used to lay a foundation for an argument that the evidence was collected unlawfully or improperly.

Fifth, the defense attorney can attempt to discredit the investigator by attacking the quality and accuracy of the investigator's reports. Defense attorneys know that some police officers may not provide completely accurate details in their reports. The task of the defense attor­ ney is to find any inaccuracies. An investigator's testimony in court may only be as good as his or her reports.

Relatedly, defense attorneys may look for inconsistencies within the reports or inconsisten­ cies between the investigator's reports and accounts provided by other officers, witnesses, or victims. Any testimony that is inconsistent with what is contained in an investigator's report is very likely to be of interest and lead to questioning from defense attorneys. The discrepancy may be small, relatively insignificant, and even explainable, but it may be the focus of questioning nonetheless. At the very least, the intent may be to confuse or fluster the investigator through the use of double negative, repetitive, or compound questions. Investigators should simply speak to their actions and knowledge. Generally speaking, investigators should not try to explain discrepancies on their own. The prosecuting attorney can ask questions of the investigator or of another witness in order to obtain clarification. Investigators should not be surprised if they are accused of lying when a discrepancy is

449

Cross-examination: The cross-examination elic its testimony from a prosecutor's witness (such as a police officer) through questioning by the defense attorney, or from a defense witness by the prosecuting attorney.

Impeach: To impeach a witness is to make that witness, or some testimony provided by the witness, unbelievable. It is a goal of the cross-examination.

Leading questions: Questions that are phrased in such a way that an answer is contained in the question (e.g., ''Wouldn't you agree that . . "); such questions are sometimes used in a cross-examination.

450 CRIMINAL INVESTIGATION

discovered or when a mistake in testimony (or a report) is identified. In such instances, it must be understood and explained that a mistake is unintentional, a lie is not.

Another method used to impeach an investigator is to call into question statements of fact and opinions, if any of these have been stated in reports. In Chapter 3 it was explained that opinions and conclusions should not be provided in investigative reports; reports should state facts as specifically and directly as possible. The following exchange demonstrates why:

DEFENSE ATTORNEY: Officer, you wrote on page two of your report that "entry was gained through the bedroom window that was left unlocked." Is that correct?

OFFICER: Yes.

DEFENSE ATTORNEY: How do you know that the window was not locked?

OFFICER: Because it appeared to me that if the lock on the window was locked, the window would have to have been broken in order to open it. And the window was not broken.

DEFENSE ATTORNEY: Do you realize, officer, that the lock on the window was broken prior to the incident in question?

OFFICER: No.

DEFENSE ATTORNEY: That window could not have been locked because the lock did not work. Did you put that in your report, officer? Did you put in your report that the lock was broken? What else didn't you put in your report, officer?

During this exchange, the defense attorney is not even contesting whether the window was locked. The defense attorney is just highlighting the fact that the officer did not know that the lock was broken. From here, the defense attorney may well suggest that the inves­ tigation was incompetently performed. The intent on the part of the defense attorney is to discredit the officer by questioning a seemingly simple statement that might not have even played an important role in the investigation. Although objections can be raised by the prosecuting attorney regarding such a line of questioning, the damage may already have been done. The lesson here is that investigators should draw conclusions and write their reports very carefully because it may have implications for their testimony.

PHOTO 15.4: Defense attorneys attempt to impeach investigator witnesses in court. Some of the methods used to do this include asking leading or difficult questions, annoying the investigator, and calling the investigator's integrity into question.

Chapter 15 • The Presentation of Evidence

Defense attorneys may also attempt to impeach an investigator witness by calling into question the investigator's honesty and credibility. If the defense attorney can show the investigator lacks honesty or credibility, then the opportunity exists for the defense attorney to call into question the hon- esty and credibility of the investigator with regard to the cur­ rent case. It is not uncommon that defense attorneys request and receive access to the personnel files of the police officers who conducted an investigation in an attempt to find evidence of previous misconduct that might relate to the conduct of these officers in the current investigation.

Finally, defense attorneys may try to confuse or otherwise fluster investigators. They may ask confusing or complex questions (e.g., "Is it not true that you didn't search for and collect fingerprints?"), they may try to trick investigators by deliberately mischaracterizing or summarizing previous testi­ mony, they may ask for a "yes" or "no" answer to a question that requires explanation, or they may take a friendly tone and ask leading questions in order to lull the investigator into careless answers. Understanding the strategies commonly used by defense attorneys in cross-examining investigators may help investigators in preparing for their testimony. As noted in one law enforcement bulletin, "indeed, the right time for law enforcement officers to contemplate the defense's strategy is at the beginning of an investigation, not while they are sitting on the witness stand."18

Why so Many Legal Rules?

The U.S. trial process and the jury system

is a rather strange way to determine the truth-a method unlike any other. It is odd

because the rules (e.g., the exclusionary

rule, double jeopardy, evidence beyond a reasonable doubt to convict) are so artificial, so "made up." Another oddity is that the evidence presented to the jury is not necessarily inclusive of all

evidence collected by investigators. The rules regarding the admissibility of certain information, such as the defendant's criminal history, the defendant's right to remain silent, the defendant's attempts to plea bargain in the present case, and other evidence that was collected but not introduced at trial, are very strict. So the question is, Why does it seem like there are so many rules in the U.S. trial process that protect the rights of the accused and make it more difficult to obtain convictions?

Several guidelines have been suggested for investigators to follow in order to most effec­ tively testify in court.19 These include the following:

• Tell the truth. This should go without saying as lying on the witness stand is a crime. If a mistake or misstatement is made in the testimony provided, correct it as soon as possible.

• Be prepared. Review the case, your notes, reports, and other documents associated with the case prior to your testimony. In court, reports can be used to refresh your memory about particular details of the case. Do not memorize your testimony as this is not convmcmg.

• Stick to the facts and avoid opinions. Speak to your personal knowledge­ what you did, saw, or heard. Let other witnesses speak for what they saw and did.

• Answer the question asked, no more, no less.

• Be mindful of nonverbal communication and be serious.

Avoid laughing or smiling. Avoid any negative or inappropriate gestures and facial expressions. Any behavior that indicates hostility, annoyance, or anxiety should also be avoided.

• Be respectful of the defense attorney, judge, prosecuting attorney, the jury, and others. The attorneys should be addressed as "sir" or "ma'am," the judge as "Your Honor."

• Speak directly, clearly, and confidently. Speak clearly and loudly enough to be easily heard. Maintain eye contact. If the judge asks the question, look at the judge when answering. When an attorney asks a question, look at the jury when answering. Speak in terms understood by the jury (i.e., avoid "cop talk") .

• Listen and think before you speak. Do not look to anyone else for answers to the questions you are asked. If you did

451

452

not understand the question, ask for it to be repeated. If you do not know the answer to the question, say, "I do not know." If you do not remember, say, "I do not remember."

CRIMINAL IN VESTIGATION

• Be professional. This includes how you dress and how you speak. Avoid slang. Dress should be in accordance with agency policy regarding proper attire in court.

Keeping these guidelines in mind will provide for a clear and effective presentation of evi­ dence in the case.

A final comment about testimony relates to those issues that an investigator should be sure to not volunteer when testifying.20 An investigator should not comment about the defen­ dant's prior criminal history. There are strict rules regarding the admission of this informa­ tion in court. Also, investigators should not comment about the defendant's decision to not answer the questions of the police. Defendants have the right to remain silent and to have an attorney present during questioning. Neither of these rights, if invoked, constitutes evi­ dence. Any testimony about the defendant's Miranda rights should be in direct response to questions asked about that exact information. Similarly, investigators must not provide any testimony about the defendant's attempts to negotiate a plea bargain. Unsuccessful plea bargain negotiations are not evidence. Finally, no testimony should be offered with regard to evidence that has been ruled inadmissible by the judge. For example, if evidence was collected as the result of a search that was ruled to be unconstitutional, there is to be no mention of that search or the resulting evidence. If an interrogation was ruled to be illegal, there must be no mention of that interrogation or the resulting confession.

MAIN POINTS 1. The court process in the United States is 5. False convictions may occur for a variety

adversarial in nature. Defense attorneys and of reasons: police misconduct and errors,

prosecuting attorneys present conflicting versions prosecutorial misconduct and errors, defense

of the truth in court. The judge is supposed to be a attorney misconduct and errors, mistakes made

neutral referee in the contest. by judges, incompetent and corrupt expert

Police investigators are a part of the prosecution witnesses, perjured or unreliable testimony from

2. lay witnesses, and inept juries.

team. Investigators collect evidence and establish,

with probable cause, who committed the crime. 6. All evidence presented in court is delivered through

The prosecution then presents this evidence or accompanied by testimony-statements made

in court to convince a judge or jury, beyond a in court by individuals under oath to tell the truth .

reasonable doubt, that a crime occurred and that Witnesses provide testimony. Lay witnesses can

the defendant committed it. testify only to the facts of the case as they see

3. Defense attorneys "test" the evidence in the them. Expert witnesses can express their opinions

case, often by "testing" the conduct of the police in court. Expert witnesses are usually persons

who are skilled or knowledgeable in a particular in collecting the evidence. This is necessary to

subject. increase the chances of a fair and just outcome.

4. Miscarriages of justice, be they in the form of 7. The use of expert witnesses in court can be

innocent subjects being punished or guilty subjects controversial for several reasons.

going free, are serious issues. If a guilty person 8. Police officers and investigators are usually goes free, that person has avoided punishment and considered lay witnesses in court. Their role is to justice is denied for the victim and for society. That describe the investigation they conducted and the person is also free to offend again. If an innocent evidence that resulted from the investigation. person is convicted, it will have devastating effects

on that person's life, and the person responsible for 9. There are three situations in which investigators

the crime remains free to offend again . may be required to provide testimony relating to

Chapter 15 • The Pre sentation of Evidence

the investigations they conducted: in a deposition,

at a preliminary hearing, and at a trial.

10. Defense attorneys often "test" the police during

cross-examinations when they ask questions of the

investigators. various tactics can be used during a

cross-examination.

11 . The cross-examination is usually the most difficult

aspect of testifying. The best way to overcome this

is to understand the tactics of defense attorneys

and be prepared for them.

12. several guidelines can be offered with regard to

effective testimony: tell the truth; be prepared;

IMPORTANT TERMS Impeach, 449

stick to the facts and avoid opinions; answer

the question asked; be mindful of nonverbal

communication and be serious; be respectful;

speak directly, clearly, and confidently; listen

and think before you speak; and be professional,

including in your attire.

453

13. When testifying, investigators must avoid comment

about the defendant's prior criminal history, the

defendant's Miranda rights and whether he or

she invoked them, the defendant's attempts to

negotiate a plea bargain, and any evidence that has

been ruled inadmissible by the judge. Commenting

on any of these issues may be grounds for a mistrial.

Voir dire, 448 Adversarial process, 440

cross-examination, 449

Direct examination, 448

Leading questions, 449

Miscarriage of justice, 441

QUESTIONS FOR DISCUSSION AND REVIEW ••------ 1. Why is the court process an adversarial one? What

is the role of the defense attorney, prosecuting

attorney, judge, and the police in the process?

2. Why are errors in judicial outcomes a serious

problem?

3. Why is a vigorous defense for defendants

necessary in the judicial process?

4. What are the situations in which investigators may

be required to provide testimony?

5. Why is it important for investigators to be as

comfortable and competent on the witness stand

as they are at crime scenes?

($)SAGE edge™ Give your students the SAGE edge!

6. What are the steps or stages of the trial process,

and what are the two main questions addressed in

the trial?

7. What is the purpose of the cross examination?

What tactics are commonly used by defense

attorneys when cross-examining investigator

witnesses?

8. What are the rules to follow when providing

testimony in court?

SAGE edge offers a robust online environment featuring an impressive array of free tools and resources for review, study, and further exploration, keeping both instructors and students on the cutting edge of teaching and learning. Learn more at edge.sagepub.com/brandl4e.