January 2008
Homicide Investigators and Prosecutors: An Essential Alliance
by
Phil Evans
Deputy Commonwealth’s Attorney, City of Norfolk, Virginia
What are your responsibilities to the justice system as a
Homicide Investigator?
1) Investigate unlawful taking of a human life.
2) Identify those responsible.
3) Arrest those responsible.
4) Convict those responsible.
To convict a murderer requires close and mutually supportive
coordination between the police investigator and prosecutor.
An investigator who thinks his or her work ends upon arrest
risks loss of the case. Some of the most important works takes
place in the preparation of the trial and reconstruction of the
crime scene.
The investigators case report is normally the primary document
that alerts the Prosecutor to the strengths and weaknesses of
the case.
File documentation MUST BE COMPLETE AND UNRESTRAINED. Like a
scene reconstruction, you cannot leave out what you think may
hurt or jeopardize the case. You must include everything.
The Commonwealth Attorney is held to be aware of anything of
which the police are aware whether or not the police have
disclosed it to him.
11Va. App. 103,397 S.E.2d 263 (1990) (Tape held by officer
was “known” by Commonwealth Attorney)
If you fail to note the existence of physical evidence seized OR
the existence of a tape of a defendant interview OR fully
document your canvass notes, YOU ARE PLAYING RUSSIAN ROULETTE
WITH YOUR CASE.
Legal Remedy: If the Commonwealth Attorney fails to disclose a
matter of which he may not have personal knowledge, but of which
he is held to have constructive knowledge, the court may grant a
continuance over the Commonwealth’s objection, limit the use of
Commonwealth evidence, grant a mistrial, or hold the
Commonwealth’s in contempt. Monroe v. Commonwealth, 10
Va App. 408,392 S.E. 2d 836 (1990).
A conviction in a case in which such evidence was not disclosed
requires REVERSAL of the conviction if there is reasonable
probability that the outcome would have been different or the
confidence in the outcome has been undermined.
Do not discover lab reports in your file at trial.
Coordinate with other police support activities such as
forensics to ensure their paperwork is part of your report.
EXCULPATORY EVIDENCE: Must be disclosed to the prosecutor
BEFORE you end up on the witness stand as the Commonwealth has
an absolute requirement to disclose such information.
FAILURE to disclose exculpatory evidence places the
Prosecutor’s case at risk as well as your career. Brady v.
Maryland 373 U.S.83 (1963)
Do not try to make close calls. Disclose all to the Prosecutor –
the burden is then on him or her to disclose.
Bad news does not get any better with age. Problems with
inconsistent witness statements etc. are more easily dealt with
the earlier in the case they are handled.
Trial
Direct Examination
You are a salesman. You must sound convincing and believe in
what you are testifying to. Do not respond in a tone that sounds
like you are apologizing for the defendant even being charged
with the crime.
Your case report is not a foreign object. If you bring it to
court be prepared to locate the documents in it when called. It
does not improve your credibility with the court or a jury if
you cannot locate a rights advisal form in your own file.
Who is your audience? The judge in a bench trial and a jury of
12 in a jury trial. Receive the questions from the Commonwealth
Attorney but turn and give your answer to the judge/jury.
Remember that the prosecutor does not vote for guilt or
innocence.
Cross Examination
Maintain control and think before you speak. A good defense
attorney has a reason for not only what questions he asks, but
how he asks them. For example, if your are testifying on direct
examination with respect to the defendant’s confession then the
defense attorney is either going to attack the voluntariness of
the statement, the accuracy of the statement, or the existence
of prior “undocumented” statements.
You should be the professional. Listen to the tone of the
defense attorney: reassure the jury of the correctness of your
testimony.
When the defense gives you an opening, jump through it. Restate
the basis of your direct testimony. For example:
Q. Isn’t it true that the defendant asked to talk with his
attorney?
(Routine Answer): No.
(Better Answer): Sir, the defendant was advised of his
rights and never asked to speak to an attorney. He said he
wanted to tell us what happened.
WE
DO NOT WANT TO START VOLUNTEERING INFORMATION THAT WAS NOT PART
OF YOUR DIRECT EXAMINATION. THIS IS AN OPPORTUNITY TO
REEMPHASIZE YOUR DIRECT EXAMINATION, NOT VENTURE INTO PARTS OR
AREAS UNKNOWN.
Do not allow yourself your self to become visibly annoyed at the
defense counsel. Remember that there are many people on juries
who do not trust the police and are willing to believe a tall
tale if they have something to base it on (such as seeing you
loose your temper or control).
Homicide Investigation Considerations
The world turned upside down: How did the O.J. Simpson trial
change how we do business?
The public watches CSI every week and believes every crime scene
is subjected to a similar level of inquiry.
Prosecutors must now expand the window dressing of homicide
prosecutions to show the efforts made by law-enforcement that
DID NOT yield evidence. For example, demonstrating that a scene
was processed for fingerprints, no prints recovered and why.
The media has so inundated American Culture with the idea of
witness misidentification that you, as a homicide investigator,
must link your witnesses with the crime scene and physical
evidence. The scene gives your witnesses creditability.
In some jurisdictions, (Norfolk), the idea of routinely
successful single eyewitness identification/homicide
prosecutions is a vestige of the past.
Always Ensure Control of the Crime Scene
From notification to conclusion, you must be in control of your
crime scene.
If you are dealing with multiple crime scenes, execute a
coordinated investigation of each with informed officers and
investigators. For example, do not send forensic investigators
to “process” a secondary crime scene when they have not had the
benefit of even a rudimentary briefing on the case. How do you
expect them to recognize potential evidence? Always make an
attempt to incorporate transfer and exchange here.
NEVER LET THE IMMEDIATE IDENTIFICATION OF A SUSPECT DILUTE THE
THOROUGHNESS OF YOUR CRIME SCENE INVESTIGATION. You cannot call
crime scene do-overs if your suspect is cleared, or a potential
direct witness goes south.
Recognize and preserve physical evidence.
Always understand that the jury expects physical evidence. The
absence of it must be documented through unsuccessful attempts
to gain it.
Do not discard your common sense when you enter a homicide crime
scene.
All potential forensic evidence at the scene and the importance
of such evidence may not be immediately apparent yet prove
critical later. If in doubt of its evidentiary value, recover
it.
Every crime scene you enter and process should be looked at
through an eye as to how the prosecutor will have to present the
case to a jury.
DO NOT LET THE LAB RUN YOUR INVESTIGATION. Or why does it make
sense to test 15 cigarette butts for DNA?
Review your crime scene photographs and make sure they
accurately depict the crime scene.
BUILD AND DOCUMENT A STRONG TRIAL WITNESS BASE THROUGHOUT YOUR
INVESTIGATION.
In most homicide cases there will be at least one key
prosecution witness who was only the subject of canvass notes.
Ensure your notes are complete.
Coordinate with other assisting investigators, review their
interviews and canvass notes, and always complete follow up
interviews.
Always ensure your investigative notes are thorough. Do not come
up with sudden and new statements at trial.
The following is a logical order that your case folder should
folder. Label tabs should always be used as dividers to be able
to quickly locate documents at trial:
1)
Case summary and significant events
2) IBR or offense report
3) Body identification form/ victim I.D.
4) Investigators notes
5) Officers notes
6) Witness statements
7) Defendant statements (Include rights form)
8) Arrest records and DMV transcripts of defendant
9) Wanted posters and suspect information if not in custody
10) Crime scene sketch and evidence recovery sheet
11) Vouchers
12) Lab requests and results
13) Search warrants or consent to search forms
14) Miscellaneous paperwork, news clippings, miscellaneous
photos, etc.
