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.

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.


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.


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.



Training can also be adjusted to meet the specific need of a requesting agency or association. We conduct one and two day training courses for both coroner and medical examiner associations for annual re-training and other state agencies having a specific training need in the field of homicide investigation.


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