Kimberly S. Schwartz Senior Assistant District Attorney...

Putting It All Together: Courtroom

Presentation for the Georgia K9 Handler

K9 Handler Intensive

GPSTC – Forsyth, GA – January 18, 2019

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Courtroom Presentation for the Georgia K9 Handler

Kimberly S. Schwartz

Senior Assistant District Attorney

Narcotics Division

Chattahoochee Judicial Circuit





2

Why are excellent

courtroom presentation

skills important?

Defendants have

constitutional due process

rights – therefore, being

prepared to present well in

court will sometimes be a

necessary part of completing

your case.





3

Your credibility, the reliability

of your canine partner, and

your reputation for not just

willingness, but eagerness to

come to court, and your ability

to be an outstanding witness,

is part of prosecutor triage.

tri-age (trē´äzh). n. 1. the sorting of and

allocation of treatment to patients and

especially battle and disaster victims

according to a system of priorities

designed to maximize the number of

survivors. 2. the assigning of priority

order to projects on the basis of where

funds and other resources can be best

used, are most needed, or are most likely

to achieve success





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Your credibility, the reliability of your

canine partner, and your reputation

for not just willingness, but

eagerness to come to court, and

your ability to be an outstanding

witness, is part of defense attorney

evaluation of the trial-worthiness of

a case and the likelihood of

success of pre-trial motions,

therefore . . . .

Your credibility, the reliability of your

canine partner, and your reputation

for not just willingness, but

eagerness to come to court and

your ability to be an outstanding

witness, is inversely related to the

number of times you’ll actually have

to come to court.





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Beyond the Basics





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Except . . .

Three basics points:

Basic Point #1:

STUDY YOUR

REPORT





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Basic Point #2:

Excellent Courtroom

Presentation Begins

at the Crime Scene

Treat every deployment

as though you expect

to find eight kilos….or a

murder weapon.





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Forming good

procedural habits and

following them

consistently can help

cure lapses in

documentation.

Good Report Writing is Vital

Document for years or decades down

the road

Case may be delayed in disposition (bench

warrants, crime lab, crowded trial calendars,

etc.) or reversed on appeal.

Case may be 404(b) evidence in future

cases.

Your report writing is part of what

establishes you as a witness to be

reckoned with.





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Basic Point #3:

Video

Awareness





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The advantage of video evidence is

that it shows exactly what happened

at the crime scene.

The disadvantage of video evidence

is that it shows exactly what

happened at the crime scene.

Video Dangers:

Language, language, language

Attitude and approach

Inadvertently playing into defense theme of

“this is all a game, and not very important”.

This is a crime scene.





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Video Dangers, continued:

What’s being captured that defense can

use?

Conversations between officers

Cell calls, texts, pics

Other witnesses not documented in report

Discovery materials not provided

Video Dangers, continued:

What’s not being captured that fact-

finders (especially jurors) expect?

Why isn’t there video?

Why doesn’t the video show what you’re

telling me happened (POV)?





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Making Video Evidence Work:

On-scene camera awareness –

especially when it comes to what your

dog is doing

Parking angles

Have another officer also recording while

you are working dog

Making Video Evidence Work,

continued:

Why doesn’t the video show what you’re

telling me? Be prepared to talk about

POV.

How does it look, and how can that be

(mis)interpreted?

Review video before writing report

Review video before testifying





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Beyond the Basics

Beyond the Basics Goals for this

Unit of Instruction:

Understand varied purposes for which

canine reaction evidence is presented in

court

Know the evidentiary foundation for the

presentation of canine reaction evidence

in court.

Understand how proper documentation

supports the introduction of canine

reaction evidence in the courtroom





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Beyond the Basics Goals for this

Unit of Instruction:

Understand how the K9 handler can be

qualified and used as an expert witness

Proper handling of exhibits and laying

evidentiary foundation for their

admissibility

Pointers for direct examination

Pointers for cross-examination

Why was the police dog deployed in this

case to begin with? And what are we

trying to prove?





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Use of Canines in Law

Enforcement Work:

1. As a tool: deploying dog to do something

the human officer is already authorized to

do – but the dog can do it better, more

quickly, and/or more safely.

2. Dog’s reactions as circumstantial evidence

of some substantive factA. To establish basis for legal authority to do something that

the human officer doesn’t yet have authority to do at that

point in the investigation

B. To prove (again, circumstantially) some substantive fact

in court

Just because the dog can do it better/safer:

Examples:

Building searches/burglary in progress

Search warrants

Tracking/Apprehension

No real legal implications for criminal

case (Don’t get confused on this!)

It’s still interesting and compelling

evidence

It’s still a deployment & still needs to be

documented!

Liability issues still exist





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Dog Reaction as

Circumstantial Evidence

of a Substantive Fact

Dog Reaction as Circumstantial Evidence of

a Substantive Fact:

Examples:

To establish PC for Carroll-doctrine vehicle

search

To corroborate other evidence that a

particular person was or was not present at

crime scene





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Another comparison: Situation: valid search warrant being executed

The dog as a tool: Detection canine is deployed

right after house is cleared to find drugs more

effectively than human officers can

The dog’s reaction as substantive evidence:

There was drug odor in the closet, just like the

testifying CI said, even though no drugs found in

the closet

Understanding Direct

and Circumstantial

Evidence





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Direct Evidence

"Direct evidence" is the testimony of a person

who asserts that he or she has actual

knowledge of a fact.

Direct evidence is that which may be seen or

heard or otherwise directly sensed, such as

by smell or taste or touch. It may be brought

into court in the form of exhibits or the

testimony of direct witnesses to such matters.

It is evidence that points immediately to the

issue in question.

Circumstantial Evidence

"Circumstantial evidence" is proof of a set of

facts and circumstances that tend to prove or

disprove another fact by inference (that is, by

consistency with such fact or elimination of

other facts).





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Circumstantial Evidence,

cont’dWhen direct evidence, by inference, points to an

obvious, likely, or reasonable conclusion--even

though that conclusion was not directly seen, heard,

smelled, tasted, or touched--that is said to be

circumstantial (or indirect) evidence. Circumstantial

evidence is the proof of facts or circumstances, by

direct evidence, from which you may infer other

related or connected facts that are reasonable and

justified in light of your experience. It is evidence that

only tends to establish a conclusion in question by its

consistency with such conclusion or elimination of

other conclusions. Sometimes circumstantial

evidence may point to more than one conclusion.

Direct Evidence: mental one-step

Circumstantial Evidence: mental two-

step• Must successfully establish (by direct evidence)

the underlying fact(s) which then….

• Allows for inference(s) helpful to the State’s

case to be drawn from those underlying facts





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The strength of circumstantial evidence

depends on the extent to which the proponent

of that evidence can:

• Establish the underlying facts

• Establish that the desired inference is the

only reasonable inference that can be

drawn

To the extent that the underlying facts aren’t

well-established or reasonable inferences

other than the desired one can be drawn,

circumstantial evidence is weakened.

Using canine reaction as

circumstantial evidence of some

substantive fact requires the “two-

step”:

• Must successfully establish (by direct

evidence) the underlying facts, i.e., that the

dog alerted and/or performed a final response

• It is reasonable to make the desired inference

from the alert and/or the final response (other

reasonable inferences have been eliminated)





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Step One: How do we establish (by direct evidence/credible

testimony) the necessary underlying facts, i.e.,

that the dog reacted and/or performed a

conditioned response?

• Can the handler describe in eloquent detail

exactly what the dog did, preferably using

terminology accepted by and familiar to the

courts?

• Was the dog’s behavior documented?

• Was there video and what does it show?

Step Two (Reliability):How do we convince the fact-finder that there is

only one reasonable inference to be drawn from

the facts established about the dog’s reaction

and/or conditioned response?

• Can the handler establish that the dog was

properly trained?

• Can the handler establish that the dog was

properly utilized?

• What does the dog’s alert and/or the final

response mean?





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Step Two (Reliability), continued:How do we convince the fact-finder that there is

only one reasonable inference to be drawn from

the facts established about the dog’s reaction

and/or conditioned response?

• Can the handler establish that the dog does

not alert to or perform a final response to,

anything other than the specific odor (s)he has

been trained to detect?

If you aren’t keeping training and

deployment records, you’re doing it

wrong.





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TRAINING RECORDS AND

DEPLOYMENT RECORDS ARE

ESSENTIAL

• To support the handler’s credibility,

including depth of experience and

provide support for a finding that

handler is an expert witness

• To support the dog’s training and

reliability

But wait! Didn’t the U.S. Supreme Court hold,

in Florida v. Harris, that:

“Evidence of a dog's satisfactory performance in a

certification or training program can itself provide

sufficient reason to trust his alert”, and that where ‘”a

bona fide organization has certified a dog after testing

his reliability in a controlled setting, a court can

presume (subject to any conflicting evidence offered)

that the dog's alert provides probable cause to search”

and that “[t]he same is true, even in the absence of

formal certification, if the dog has recently and

successfully completed a training program that

evaluated his proficiency in locating drugs.”?

https://advance.lexis.com/document/?pdmfid=1000516&crid=88c37e5d-a8ac-4908-8961-a96cf4a7a815&pdactivityid=c7b398e5-6eae-4152-b892-1882aac40675&pdtargetclientid=-None-&ecomp=r3ydk&prid=4b8d0630-6809-4d6a-ad2f-78c5175afcd5








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Yes, but….

“Evidence of a dog's satisfactory performance in a

certification or training program can itself provide

sufficient reason to trust his alert”, and where ‘”a bona

fide organization has certified a dog after testing his

reliability in a controlled setting, a court can presume

(subject to any conflicting evidence offered) that the

dog's alert provides probable cause to search” and

“[t]he same is true, even in the absence of formal

certification, if the dog has recently and successfully

completed a training program that evaluated his

proficiency in locating drugs.”

And:“A defendant, however, must have an opportunity to challenge

such evidence of a dog's reliability, whether by cross-examining

the testifying officer or by introducing his own fact or expert

witnesses. The defendant, for example, may contest the adequacy

of a certification or training program, perhaps asserting that its

standards are too lax or its methods faulty. So too, the defendant

may examine how the dog (or handler) performed in the

assessments made in those settings. Indeed, evidence of the

dog's (or handler's) history in the field, although susceptible to

the kind of misinterpretation we have discussed, may sometimes be

relevant . . . And even assuming a dog is generally reliable,

circumstances surrounding a particular alert may undermine

the case for probable cause - if, say, the officer cued the dog

(consciously or not), or if the team was working under unfamiliar

conditions.”

Florida v. Harris, 568 U.S. 237, 247 (2013)





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And:The court should allow the parties to make their best case . . . And

the court should then evaluate the proffered evidence to decide what

all the circumstances demonstrate. If the State has produced proof

from controlled settings that a dog performs reliably in detecting

drugs, and the defendant has not contested that showing, then

the court should find probable cause. If, in contrast, the defendant

has challenged the State's case (by disputing the reliability of

the dog overall or of a particular alert), then the court should

weigh the competing evidence . . .The question — similar to every

inquiry into probable cause — is whether all the facts surrounding a

dog's alert, viewed through the lens of common sense, would make

a reasonably prudent person think that a search would reveal

contraband or evidence of a crime. A sniff is up to snuff when it

meets that test

Florida v. Harris, 568 U.S. 237, 248 (2013)

An appellate opinion that

ends up as a win for the

State is, quite often, also an

invitation to the defense to

craft new and different

challenges, based on the

“pressure point” contained

language in the case.





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What’s the minimum we can

defend (after the fact)?

vs.

What are the best practices

that will preempt any

challenges?

Harris v. State, 341 Ga. App. 831, 802

S.E.2d 708 (2017)

Bruce Ervin Harris indicted for trafficking

marijuana and PWI marijuana – 40 lbs

found in his luggage at airport.

Harris filed motion to suppress and served

a subpoena for “[a]ll records and

documents relating to

drug/narcotic/explosive detection canine

handler and all records and documents

relating to drug/narcotic/explosive detection

canine ‘PacMan’”.





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S.E.2d 708 (2017)

Harris filed motion to suppress citing lack

of PC for search and that dog was

unreliable.

State provided in discovery:

Handler's training completion certificate

PacMan's training completion certificate

NNDDA certificate showing PacMan and

handler certified as a team

Copy of cover of the NNDDA certification

book showing the “certification numbers.”


S.E.2d 708 (2017)

Harris served a subpoena for “[a]ll records

and documents relating to

drug/narcotic/explosive detection canine

handler and all records and documents

relating to drug/narcotic/explosive detection

canine ‘PacMan’”.

State filed motion to quash the subpoena,

relying on Florida v. Harris.





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S.E.2d 708 (2017)

At hearing on motion to quash, State

argued, relying on Florida v. Harris, that the

dog’s reliability was presumptively

established by demonstrating certification

on the day of the alert and that records

having to do with training – which the State

somehow distinguished from reliability -

were, therefore irrelevant.

Trial court granted motion to quash


S.E.2d 708 (2017)

“The cases [Florida v. Harris and State v.

McKinney] do not hold, as the State asserts,

that Harris is precluded from challenging the

reliability of the alert with materials related to

training because reliability was presumptively

established by demonstrating certification on

the day of the alert.”





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S.E.2d 708 (2017)

Having determined that certification on the

day of the alert does not preclude a

challenge to the reliability, this Court cannot

determine from the existing record whether

the training materials were relevant to the

issue of reliability.

Remanded for further hearings on whether

requested records were relevant to reliability.

Evans pled to reduced charge of PWI

Marijuana 12/19/17 – 10 years FOA

probation

Bottom line on Harris v. State:

If a defendant can establish the

relevance of training and

deployment records on the issue

of the canine’s reliability, then it

is likely that the defendant will be

able to subpoena those records

and cross-examine the handler

regarding them.





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Oldest Georgia Case: Fite V. State, 16

Ga.App. 22 (1915)

“Evidence as to the conduct of dogs in following tracks should not

be admitted until after preliminary investigation in which it is

established that one or more of the dogs in question were of a

stock characterized by acuteness of scent and power of

discrimination, and had been trained or tested in the exercise of

the qualities in the tracking of human beings, and were in the

charge of one accustomed to use them. It must also appear that

the dogs so trained and tested were laid on a trail, whether visible

or not, concerning which testimony has been admitted, and upon a

track which the circumstances indicate to have been made by the

accused. When these preliminary tests have been made, the fact

of tracking by a bloodhound may be permitted to go to the jury as

one of the circumstances which may tend to connect the defendant

with the crime with which he is charged.”





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Additional Tracking Dog Cases:

Aiken v. State, 17Ga.App. 721 (1916)

Pitts v. State, 197 Ga. 317 (1944)

Schell v. State, 72 Ga.App. 804(1945)

Mitchell v. State, 202 Ga. 247 (1947)

Johnson v. State, 165 Ga.App. 851 (1983)

Bogan v. State, 165 Ga.App. (1983)

Riley v. State, 175 Ga.App. (1985)

Ingram v. State, 211 Ga.App. 821 (1994)

Johnson v. State, 293 Ga.App. 32 (2008)

General holding of Tracking

Dog Cases:• If proper foundation is laid under Fite,

evidence of the reaction of a tracking

dog is admissible.

• Such evidence can be used to

corroborate other evidence of guilt.

• A criminal conviction cannot be based

solely on the reactions of a tracking dog.





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Carr v. State, 267 Ga. 701

(1997): Arson/murder; GBI DOFS analysis of fire debris

found no accelerants, although there was some

other evidence (burn patterns, etc.) of arson.

Court allowed evidence of alert by accelerant

detection dog over defense objection that dog

alert doesn’t meet Harper standard.

Prior to evidence coming in, State introduced

evidence of the dog’s reliability. Trial court held

that Harper shouldn’t apply, but if it did, then the

State’s evidence met the Harper standard.

What is the Harper standard?

Harper v. State, 249 Ga. 519, 292 S.E.2d

389 (1982)

Has to do with admissibility of testimony

regarding scientific processes or test

results

State must establish, and trial judge must

find, that “the procedure or technique in

question has reached a scientific stage of

verifiable certainty or whether the

procedure ‘rests upon the laws of nature’”.





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Harper standard, continued:

Two-part test:

The general scientific principles and

techniques involved are valid and capable of

producing reliable results

The person performing the test substantially

performed the scientific procedures in an

acceptable manner

The Harper standard is included in the new

Georgia evidence code FOR CRIMINAL

CASES ONLY, at O.C.G.A. 24-7-707:

“In criminal proceedings, the opinions of

experts on any question of science, skill,

trade, or like questions shall always be

admissible; and such opinions may be

given on the facts as proved by other

witnesses.”





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Georgia CIVIL cases – and all federal

cases, both civil and criminal – follow a

higher standard called the Daubert test

[Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469

(1993)]: “Whether the testimony’s

underlying reasoning or methodology has

been scientifically validated and properly

can be applied to the facts at issue.”

Daubert factors include:

• Testing of expert’s theory

• Publication support of the expert’s method

or theory

• Error rate

• General acceptance of the expert’s

approach





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Daubert is a higher standard than

Harper. If a field of expertise or type

of testing has been held to satisfy a

Daubert analysis, then it will also

satisfy Harper on the theory the

“greater will include the lesser.”

[Young v. State, 328 Ga. App. 857,

763 S.E.2d 137 (2014)]


(1997), continued: Complaint on appeal was that such evidence

shouldn’t have been admitted because there was

no evidence at trial that dog alerts have “reached

a state of verifiable certainty” (Harper standard)

Supreme Court held that Harper requirements

do apply to arson dog alerts because “it is plain

that the dog alert testimony was expert testimony

in that the average layperson would not be able

to determine from watching [the dog’s alert and

final response behaviors] that [accelerants] were

present.”





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(1997), continued: And, applying the Harper standard, Supreme

Court held that “dog alerts to accelerants have

not been shown, neither at the trial of this case

nor in any Georgia appellate decision, to have

the scientific reliability necessary to permit their

use as substantive evidence of the presence of

accelerants.”

However . . .

U.S. v. Quesada-Ramos, 429 Fed.App.

909 (11th Cir. 2011)

Two defendants convicted for

conspiracy to destroy and destroying by

fire a building used in interstate

commerce

Part of the evidence admitted was that a

trained dog alerted to the presence of an

accelerant in the bed of one defendant’s

truck.





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U.S. v. Quesada-Ramos, continued

Defendant claimed on appeal that trial court

erred in allowing an Officer Holt to testify as an

expert witness regarding the reactions of his

accelerant detection dog.

11th Circuit disagreed, under the Daubert

standard

U.S. v. Quesada-Ramos, continued

“As long as the testimony establishes that an expert witness

has ‘a reliable basis in the knowledge and experience of his

discipline’ to provide an opinion, he is ‘permitted wide

latitude to offer opinions’ . . . The United States told

Gonzalez before trial that Holt would testify that his trained

dog alerted to the bed of Ramos's truck . . . and the United

States offered Holt as an expert witness before he testified

about his dog's response . . . The United States established

that Holt was qualified to testify that his trained dog could

detect accelerants not perceptible in a laboratory, the district

court limited the scope of Holt's testimony, and Gonzalez

was permitted to cross-examine Holt about his opinion . . .

The district court did not abuse its discretion in admitting

Holt's testimony.”





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See also: Harris v. Gourley, No. 1:10-CV-99

(WLS), 2013 U.S. Dist. LEXIS 43077 (M.D. Ga.

Mar. 27, 2013)

Civil §1983 action (false arrest) filed in federal court by a

criminal defendant against Gourley, an arson

investigator/K9 handler for the Ga. Insurance and Safety

Fire Commissioner’s Office

Gourley had arrested Harris on state charges after

collecting evidence that Harris burned his own house

Part of evidence supporting arrest was accelerant dog

alert

After analysis, GBI didn’t find accelerants, but there was

other evidence of arson

Harris v. Gourley, continued:

Issue: Did Gourley have adequate probable cause

to arrest Harris when he did? Does an arson

investigator have to wait for the GBI to confirm his

dog’s alert before using that dog’s alert as part of his

PC?

Middle District said no: “Moreover, the fact that the

lab result came back negative is not sufficient to

upend the Court's probable cause finding.

Importantly, the lab report specifically stated that it

did not test for all of categories of substances for

which Cotton is trained to detect.”





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Al-Amin v. State, 278 Ga 74

(2004):

After shooting and killing two deputies,

defendant fled into a wooded area;

tracking dogs were used to help locate

him & he was apprehended

Citing Carr, defendant complained on

appeal that tracking dog evidence

shouldn’t have been admitted because it

didn’t meet Harper standard.


(2004), continued:

Supreme Court disagreed, holding that “[t]he Harper

requirement was imposed in Carr because the

testimony concerning the dog alert was offered as

substantive evidence of the presence of accelerants

and thus bore directly on the guilty of the accused”

and “Because that type of expert testimony is not

one that the average layperson could determine for

himself, we held that the analysis and data gathering

leading to the testimony should have been subject to

the requirements of scientific verifiability required

under Harper.”





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(2004), continued:

“Testimony regarding use of dogs to flush

defendant out of a wooded area” was not germane

to [defendant’s guilt], but only to prove the manner

in which LEOs apprehended the defendant.

That evidence is “within the ken of the average

layperson”, therefore not necessary that Harper

standards be met.

Bass v. State, 288 Ga.App. 690

(2007), rev.’d on other grounds 285

GA. 89 (2009):

Based on complaints from a number of

neighbors, Bass had 12 dogs removed from his

property based on nuisance.

Neighbors began to have property crimes,

including sheds and garages being burned, “666”

carved into vehicles, and tires slashed.

GBI agent called a Corrections tracking dog that

tracked from the scene of the slashed tires to

Bass’ house.





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Bass v. State, continued:

SW obtained and other incriminating

evidence found at Bass’ house.

On appeal, Bass complained that his

attorney was ineffective for failing to object

to tracking dog evidence.


“….if the conclusion at issue could be drawn by anyone

based on observation, there would be no need for expert

testimony. . . Al-Amin v. State . . . applied this rationale to

determine whether the Harper standards should have been

met with respect to contested evidence that tracking dogs

had located the appellant who had retreated into woods.

The [Al-Amin] Court held, ‘Because this is evidence which is

within the ken of the average layperson is was not necessary

that the Harper standards be met.’ Similarly, the contested

evidence in this case is the use of a dog to track a human

scent. Thus, there is no requirement to show that the Harper

standards are met for admissibility.”





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“….the type of evidence at issue in Carr is distinguishable

from the type of evidence at issue both here and in Al-Amin.

In Carr, the contested evidence was a dog handler’s

testimony that a dog’s behavior – lying down, pointing with

his nose, or pawing the ground – showed that an accelerant

was present . . . The Supreme Court of Georgia determined

that such evidence was expert testimony subject to the

requirements of Harper, explaining that the average

layperson would not be able to conclude from watching the

dog’s behavior that an accelerant was present, but could

have reached that conclusion only with the dog hander’s

analysis of the dog’s behavior.”

Drug Detection Dogs:

Oldest Georgia case holding dog alert provides

PC for vehicle search: Donner v. State, 191 Ga.

App. 58, 380 S.E.2d 732 (1989).

Other early cases:

Boggs v. State, 194 Ga. App. 264, 390 S.E.2d

423 (1990)

Roundtree v. State, 213 Ga. App. 793, 446

S.E.2d 204 (1994)

State v. Folk, 238 Ga. App. 206, 521 S.E.2d

194 (1999)





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First Georgia case to discuss

foundation for use of drug dog alert:

Dawson v. State, 238 Ga. App. 263, 518

S.E.2d 477 (1999): After discussing several

circuit court cases that differentiate between

“training” and “reliability” and differ on

whether both need to be shown, or only

training (+ certification), the Dawson court

held that “. . . evidence that the dog has been

trained and certified as a drug detection dog

constitutes prima facie evidence of its

reliability.”

Dawson v. State, continued:

Court also emphasized that Gates

totality of the circumstances test applies

to cases where dog alert provided all or

part of the PC: “The existence of

probable cause is determined by

whether, given all the

circumstances….there is a fair

probability that contraband or evidence

of a crime will be found in a particular

place.”





44

Additional Georgia cases re narcotics

detection dogs foundation:

Rivera v. State, 247 Ga. App. 713, 545 S.E.2d

105 (2001)

Warren v. State, 254 Ga. App. 52, 561 S.E.2d

190 (2002)

Perkins v. State, 300 Ga. App. 464, 685

S.E.2d 300 (2009)

Prado v. State, 306 Ga. App. 240, 701 S.E.2d

871 (2010)

Williams v. State, 329 Ga. App. 402, 765

S.E.2d 622 (2014)

No Georgia authority or federal authority

controlling in Georgia on whether Harper

(or Daubert) standards are applicable to

evidence regarding the reaction of

narcotics detection dogs.

The federal courts that have ruled on the

issue have held that a Daubert hearing is

the wrong procedural vehicle through

which to challenge the reliability of a

canine alert.





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Persuasive authority to have in your notebook

(and share with your prosecutor) if the

Harper/Daubert question ever comes up re

your narcotics dog:

U.S. v. Outlaw, 134 F.Supp. 2d 807, 810 (W.D. Tex 2001)

United States v. Fisher, CRIMINAL ACTION NO. 01-715-01,

01-715-02, 2002 U.S. Dist. LEXIS 6652 (E.D. Pa. Apr. 15,

2002)

United States v. $23,400.00 in United States Currency, No.

1:05CV310, 2006 U.S. Dist. LEXIS 81043 (W.D.N.C. Nov. 3,

2006)

United States v. Pierre, No. 4:10CR36, 2012 U.S. Dist. LEXIS

76411 (E.D. Tex. May 10, 2012)

United States v. Morales, 489 F. Supp. 2d 1250 (D.N.M.

2007)

Additional Georgia cases on

drug dog evidence in trial:





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Willis v. State, 202 Ga. App. 447, 414 S.E.2d

681 (1992)

Trial court did not err in allowing testimony that

drug detection dog ran right to the defendant

where he was hiding in a pile of clothing and

that dog “could have” detected odor of drug

residue on defendant’s hands or on money in

his possession; state was allowed testimony

from dog’s trainer and an in-court dog demo

after defendant questioned dog’s credibility

Additional instructive cases (NOT

controlling authority for Georgia or 11th

Circuit):

Trejos v. State, 243 S.W.3d 30 (Tex.

App. 2007) [scholarly opinion on

cadaver dogs and their reliability, with

cites to other scholarly opinions]

Clark v. State, 140 Md. App. 540, 781

A.2d 913 (2001) [discussion about

expert testimony re cadaver dogs]





47

Additional additional instructive case

(NOT controlling authority for Georgia or

11th Circuit):

Perkins v. State, No. 01-08-00205-CR,

2009 Tex. App. LEXIS 7069 (App. Aug.

28, 2009) [bloodhound/tracking]

Bottom line on foundations:





48

Tracking Dogs:

Dog is of a stock characterized by acuteness of scent and power of

discrimination

Trained or tested in the exercise of the qualities in the tracking of

human beings

In the charge of one accustomed to use them

Dog “laid on a trail” concerning which testimony has been admitted,

and upon a track which the circumstances indicate to have been

made by the accused.

Be prepared for Harper hearing.

Tracking dog evidence can be used to corroborate other evidence

of guilt.

A criminal conviction cannot be based solely on the reactions of a

tracking dog.

Drug Detection Dogs:

Dog has been trained (to the extent that handler is

prepared to talk about the dog’s initial training, and

certainly the on-going training)

Handler has been trained

Dog and handler constantly train together and are

experienced working together

Monthly training (how many hours per month for how

many years)

Additional intensive trainings

Average number of monthly deployments





49

Drug Detection Dogs, continued

Dog and handler have certified together

Be prepared to talk about reliability issues

Be prepared for Harper hearing if alert is being used as

substantive evidence at trial

Accelerant Detection Dogs:

Use caution; don’t let defense just argue Carr

Lay foundation in the same way as for narcotics detection

dogs

If lab result negative, be sure to get into evidence that dog

can detect odors other than those that lab tests for

(assuming that’s the case)

If attempting to use accelerant dog alert at trial as

substantive evidence of presence of accelerants (as

opposed to investigative tool or PC for arrest), prosecutor

should strongly consider pre-trial Harper hearing





50

General Considerations

If the jury doesn’t understand your testimony, they can’t understand the facts of your case.

If the jury doesn’t like you, they may not care about the facts of your case.

When a witness testifies, three factors will come through: Personality (or lack thereof)

Preparation (or lack thereof)

Principles (or lack thereof)





51

Pre-Trial Preparation

Thorough review of

case file.

Organize file for use

in courtroom

Review transcripts

of any previous

testimony

Pre-trial meeting

with the prosecutor

Discuss your level of

experience as a

witness

Understand the

defense

Decide how to handle

the “danger zones.”

Talking to the Defense

No witness is required

to talk to an attorney

outside the courtroom.

Advantages v.

disadvantages

Know your

departmental policy.

If you choose to talk to

the defense outside

the courtroom . . .

Be prepared to hear

anything you say again

inside the courtroom

Don’t have hallway

conversations

Never talk on the

telephone

Suggest the middle

ground: agree to

interview with all parties

present.





52

Coming to Court

The criminal justice

system is not

designed to make

your life difficult.

Your case is one of

many.

Other witnesses are

subpoenaed for the

same case.

Prosecutor doesn’t

have time to deal with

everybody’s personal

problems.

Yes, you do have to

come.

This includes experts.

Defendant’s right of

confrontation.

Defendant may well be

betting on witnesses not

appearing.

Being “on-call”

Don’t abuse the

privilege.

One snafu will probably

lose you the privilege.

Coming to Court, continued:

Be on time.

Go to the location where you are

supposed to report and stay there.

Assume that you are in front of the jury

at all times.

Avoid “buddy-buddy” behavior with

defense team.





53

Personal Appearance

Uniform or civilian clothes?

If wearing civilian clothes, wear

conservative business attire.

Good grooming

No gum, candy, tobacco in the

courtroom

Except as otherwise provided in Code Section 24-6-616, at the request of a party the court shall order witnesses excluded so that each witness cannot hear the testimony of other witnesses, and it may make the order on its own motion. This Code section shall not authorize exclusion of:(1) A party who is a natural person;(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

O.C.G.A. § 24-6-615

The Rule of Sequestration





54

Who is the target audience

for your testimony?

The fact-finder

Judge

Jury

The record

The future





55

Introducing yourself to the jury:

Unless your title is on your birth

certificate, it’s not part of your name

Instant creds: Spell your name for the

court reporter

Be prepared to talk about your training

and experience

Don’t make your

prosecutor die

inside.





56

Courtroom Deportment

Jury is observing you

from the moment you

enter.

Sit up straight.

Avoid kinesic

indicators of fear or

deception.

Poise; take the time to

get comfortable.

Taking the oath is a

serious event.

Testifying to the jury

Direct v. cross

Looking toward the jury

v. making eye contact

Speak loudly and

clearly; enunciate.

Don’t forget to breath

Avoid fidgeting,

making faces, “looking

up” before answering

General Pointers for Witness

Stand Performance

Be yourself, unless you are an obnoxious jerk, then be somebody else.

Use simple, everyday language. Expert witnesses must translate scientific or

technical terminology for the jury.

Remember the record Non-verbal responses cannot be recorded

Avoid pronouns

Never use “uh-huh” or “uh-uh.”

Refer to exhibits by number

Verbalize your descriptions.





57


Stand Performance, continued:

Avoid police jargon

24-hour clock

“Subject”

Unnecessary use of race as an identifying factor

Street language – be sure to translate

Profanity

Your words v. quoting

When you are quoting, quote!

“Well, honestly. . .”

“To the best of my knowledge. . .”



Thought delays

Defendants are not “gentlemen” or “ladies.”

Asking for the question to be repeated or rephrased

Ok if you honestly don’t understand

Not ok to harass the defense attorney

Testify from your personal knowledge only.

Don’t speculate.

Don’t guess.





58



Be careful about estimating time, distance, and similar factors.

Don’t give opinions unless asked to do so.

Don’t volunteer information.

Listen to the question and make sure that your answer is responsive.

It’s ok to explain, but answer first.

Don’t interrupt or talk over any other party in the courtroom



Humor in the courtroom.

Stay focused.

Think before you answer.

If you make a mistake, acknowledge and

correct.

Always tell the truth, the whole truth, and

nothing but the truth.





59

Special Considerations for K9

Officers Juries generally love police dogs,

except….

There are some jurors who are

uncomfortable about dogs in general

and police dogs in particular

Be observant and sensitive if a juror appears

uncomfortable regarding your testimony

about your dog.

Emphasize high degree of training/control.

Using your case report/file on

the witness stand





60

O.C.G.A. § 24-6-612

(a) If a witness uses a writing to refresh

his or her memory while testifying, an

adverse party shall be entitled to have the

writing produced at the hearing or trial, to

inspect it, to cross-examine the witness

on such writing, and to introduce in

evidence those portions of such writing

which relate to the testimony of the

witness.

O.C.G.A. § 24-6-612

(b) If a witness uses a writing to refresh

his or her memory before testifying at trial

and the court in its discretion determines it

is necessary in the interests of justice, an

adverse party shall be entitled to have the

writing produced at the trial, to inspect it,

to cross-examine the witness on such

writing, and to introduce in evidence those

portions of such writing which relate to the

testimony of the witness . . .





61

O.C.G.A. § 24-6-612(b), continued

. . . If it is claimed that the writing contains matters not

related to the subject matter of the testimony, the court shall

examine the writing in camera, excise any portions of such

writing not so related, and order delivery of the remainder of

such writing to the party entitled to such writing. Any portion

withheld over objections shall be preserved and made

available to the appellate court in the event of an appeal. If

a writing is not produced or delivered pursuant to an order

under this Code section, the court shall make any order

justice requires; provided, however, that in criminal

proceedings, when the prosecution elects not to comply, the

order shall be one striking the testimony or, if the court in its

discretion determines that the interests of justice so require,

declaring a mistrial.

O.C.G.A. § 17-16-7

No later than ten days prior to trial or at such time

as the court permits, or at the time of any post-

indictment pretrial evidentiary hearing other than a

bond hearing, the prosecution or the defendant

shall produce for the opposing party any statement

of any witness that is in the possession, custody, or

control of the state or prosecution or in the

possession, custody, or control of the defendant or

the defendant's counsel that relates to the subject

matter concerning the testimony of the witness that

the party in possession, custody, or control of the

statement intends to call as a witness at trial or at

such post-indictment pretrial evidentiary hearing.





62

Using Your Case File on the

Witness Stand

You don’t have to testify completely from memory, and in fact, it is not advised.

On the other hand, you should not read your report or appear to be overly dependent on your report.

File should look professional.

File should be well-organized so that you can find relevant information quickly.

Refreshing memory v. reading the report to the jury

Objections

An objection is a perfectly valid courtroom process.

The attorney making the objection can be wrong.

Objections are sometimes used for invalid reasons.

On direct, give the prosecutor time to object.





63

Objections, cont’d

When an objection is raised, stop answering.

Listen to the objection and the ruling, so you can comport your further testimony to the court’s decision.

After court has ruled on an objection, it is ok to ask for the attorney to repeat the question.





64

3 Steps to Admit any Exhibit

into Evidence

Step 1: Identify – What is this thing?

The fact-finder can see it, but the record

cannot.

Step 2: Authenticate – What does this

thing have to do with this case? Why is

it relevant?

Step 3: Tender & Admit

Don’t blur the

distinction between

Identification and

Authentication!





65

Remember: The standard that will be

applied to expert testimony depends

on what kind of case and where it’s

being heard:

State-level courts in Georgia:

Harper rule in criminal cases

Daubert standard in civil cases

Federal court

Daubert standard in criminal cases

Daubert standard in civil cases





66

Expert opinion testimony is allowed in

Georgia criminal cases when the

question about which the expert is

offering an opinion is “beyond the ken

of the average layman” or “beyond the

ken of the jury” and requires special

knowledge or training to answer.

McFolley v. State, 289 Ga. 890 (2011)

Mosby v. State, 399 Ga. 450 (2017)

“To qualify as an expert generally all that is required is

that a person must have been educated in a particular

skill or profession; his special knowledge may be

derived from experience as well as study. Formal

education in the subject at hand is not a prerequisite

for expert status. The trial court has broad discretion

in accepting or rejecting the qualifications of the

expert, and its judgment will not be disturbed on

appeal absent an abuse of discretion.”

Davis v. State, 301 Ga. 397, 406-07, 801 S.E.2d 897,

906 (2017)

Allen v. State, 296 Ga. 785, 790 (7) (770 S.E.2d

824) (2015)





67

The Expert Witness on the Stand

Expert witness can be invaluable to prosecution in preparing to meet defenses.

Witness must first be qualified as an expert before (s)he can offer opinion testimony

Defense has a right to challenge qualifications.

Expert witness must translate scientific or technical terminology, or “terms of art”

Expert should assume about a 7th-grade level for the jury.

You’re there to engage and educate the jury





68

O.C.G.A. § 24-6-611

(b) A witness may be cross-examined on

any matter relevant to any issue in the

proceeding. The right of a thorough and

sifting cross-examination shall belong

to every party as to the witnesses

called against the party. If several

parties to the same proceeding have

distinct interests, each party may exercise

the right to cross-examination.

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law,

and to be informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his

defence.”

Constitution of the United States,

Amendment 6





69

Three purposes of cross-

examination:

Impeach witness [show that (s)he is not

worthy of belief]

Obtain favorable facts

Cast doubt on unfavorable facts

“Soft Cross”

v.

“Hard Cross





70

O.C.G.A. § 24-6-611

(c) Leading questions shall not be used

on the direct examination of a witness

except as may be necessary to develop

the witness's testimony. Ordinarily

leading questions shall be permitted on

cross-examination. When a party calls a

hostile witness, an adverse party, or a

witness identified with an adverse party,

interrogation may be by leading questions.

A leading question is a

question that includes or

indicates the answer. A

leading question suggests its

own correct answer or at

least the answer to be

avoided.





71

Being led is for sheep.

Try to anticipate where the defense

attorney is going

Know what the factual issues are in your

case

Know what the legal issues are in your case

Know what the claim(s) of the defendant are

Don’t acquiesce just because it’s a

leading question

The witness controls the pace. Take

your time.

General Tips for Dealing with

Cross-Examination Remain calm – better to be viewed as

victim than as adversarial

Don’t display anger, even if you feel it

Exception: accusation/implication of lying,

manufacturing evidence, racial motivation,

other ethical violations – ok to show a hint of

righteous indignation at an assault on your

character and/or credibility

Don’t forget to engage with the fact-

finder.





72

General Tips for Dealing with

Cross-Examination, continued If the prosecutor lets you handle it, it

means you are doing just fine.

The most brilliant trial attorney on earth

cannot confuse a truthful witness.

Dealing with Specific

Cross-Examination

Techniques





73

Repeating the Direct

Purpose: The attorney is hoping you will

slip up and give an answer inconsistent

with your direct examination.

Response:

• Stay focused and alert.

• Keep your energy level high

• This is a golden opportunity to restate all the

important facts of your case

Repetitive Questions

Purpose: Similar to “repeating the direct”, the

attorney is hoping that (s)he can lull the

witness into giving an inconsistent answer

Response:

• Stay focused and alert.

• Remember that, at a certain point, the fact-finder is

going to get as frustrated as you are

• It’s ok to judiciously point out what the attorney is

doing (“As I previously testified…” or, in extreme

cases, “Ma’am, my answer this time is the same

as the last time you asked me that question….”





74

Rapid Fire

Purpose: Get the witness on a roll so that

(s)he either doesn’t think before answering or

is in a rut – long series of fast questions to

which the answer is always “yes” followed by

a surprise question where the answer should

be “no”.

Response:

• You control the pace.

• If you take your time before answering & speak

slowly, the attorney can only go so fast.

Cutting off the Answer

Purpose: To stop an unfavorable answer to a question

that the attorney suddenly wishes (s)he hadn’t asked, or

to rattle the witness or to anger the witness

Response:

• Don’t try to talk over the attorney – you’ll both look

rude, the court reporter will hate you, and the record

will be a jumble.

• If attorney interrupts you, stop talking, wait in silence

until the attorney finishes, and then pick up the thread

of your answer again.

• If it persists, ok to turn to the judge and ask politely,

“Your honor, may I finish my answer now?”





75

Comparing testimony to that

of another witness

Purpose: To create and highlight inconsistencies between

witnesses

Response:

• You have no idea what any other witness in the case

has said, because you’ve been strictly following the

court’s instructions not to discuss the case.

• You also don’t know whether the other witness actually

said what the attorney is claiming, or if it’s a trick.

• “I can’t really comment on what Officer Smith may or

may not have said. I can only tell you what I know about

this case.”

Asking for information outside

witness’ personal knowledge Purpose: Attorney is hoping you will

speculate, guess, or misstate the facts, or is

trying to admit into evidence facts helpful to

his side of the case without calling the proper

witness

Response:

• “I can’t testify about the results of the fingerprint

analysis (or whatever it is), because I didn’t

perform it. You would have to ask the officer who

did that test.”





76

Misstating Facts in the

Question

Purpose: Attorney is hoping that you’ll fail to

notice the misstatement and, by answering

the question, tacitly agree with the misstated

facts.

Response:

• Listen carefully to each question.

• If facts are misstated in the question, don’t answer

it before correcting the misstatement.

Compound Questions

Example: “Isn’t it true that you arrested my client and

then interrogated him without advising him of his

rights?”

Purpose: By asking a multi-part question, different

parts of which would properly be answered differently,

attorney is hoping to get a favorable answer from you.

Response:

• Point out the ruse – “Mr. Jones, that’s really a two-

part question. My answer to the first part of the

question is yes, I did place your client under arrest.

My answer to the second part of your question is no,

I didn’t question him until after I had advised him of

his rights.”





77

Use of Inflammatory Language in

Question

Purpose: To get the witness to admit to a mis-

characterization of the facts; to inflame the jury; to

rattle or anger the witness.

Response: If the language in the question is

unreasonably inflammatory, answer in whatever way

would constitute a disagreement with the inflammatory

language (“No, I didn’t beat your client while he was in

handcuffs.”) and then explain the truth of the matter

(“After your client was in handcuffs, he continued to be

extremely combative and was kicking the windows of my

patrol car, obviously trying to break them. Therefore my

partner and I held him down while a third officer

restrained his feet with flex-cuffs.”)

Deliberate use of wrong

names/other descriptors Purpose: An infantile tactic, but attorney is

hoping to distract the jury and get them thinking

about and wondering why (s)he is consistently

making this mistake.

Response:

Listen carefully to the question

Correct misstatements politely, but with

increasing firmness if the tactic is repeated.





78

Trying to introduce bias

Purpose: To inflame the jury; to rattle or anger the

witness

Response:

Answer in whatever way would constitute a

disagreement with the suggestion of bias (“No, I

didn’t single your client out just because he is

Hispanic”) and then

Explain the truth of the matter (I focused on him

because the complaint I was investigating was

specifically about a Hispanic male, and he was the

only one fitting that description on that street

corner at that time.”)

Shifting Values

Purpose: By clever use of language in his questions,

attorney gets witness to tacitly agree to something

that is exaggerated or downplayed as compared to

the true facts of the case

Example: Officer testifies on direct that the lighting

was dim. On a series of questions on cross, defense

attorney characterizes the light as “dim”, then

“almost dark”, then “darkness”.

Response:

Listen carefully to each question.

Correct misstatements of fact in a question before

answering it.





79

Pre-Trial Discussions with

Prosecutor Purpose: To leave jury with impression that the

prosecutor and officer/witness have somehow

improperly conspired to frame the defendant

Response:

A matter-of-fact acknowledgement that yes, of

course you met with the prosecutor to prepare this

case for trial, as you do in every case that’s going

to trial.

This answer can be delivered with just a hint of

incredulity/surprise at the idea that the defense

attorney would even ask such an obvious

question.

Trying to pin witness down to

specifics

Purpose: To make the witness appear incompetent or

confused, or to create contradictions with the testimony of

other witnesses

Response:

Give the most specific answer you are able to give and

then refuse to give in to repeated demands by the

cross-examiner to be more specific.

If you have estimated or approximated, restate this,

and say that this is the best you can do.

If the tactic continues, it’s ok to point it out to the jury:

“As I have previously testified, I can’t tell you to the

minute what time I arrived at the crime scene.”





80

Have you ever told a lie? Purpose: To discredit the witness in the eyes of the jury

and, more importantly, the make the witness appear

sheepish, angry, uncomfortable, uncertain, or unreasonable

in the eyes of the jury, depending on the response of the

witness

Response:

Don’t let this question make you angry or uncomfortable.

It is an infantile tactic by an unsophisticated trial attorney;

recognize it as such.

The proper response is calm acknowledgement: “Yes,

Mr. Jones, I’m sure that at some times in my life I have

exaggerated the truth or told a white lie. However, I have

NEVER lied under oath.”

Isn’t it possible that . . . ? Purpose: To introduce some wild alternative theory of the

crime to the jury and get you to agree that it could possibly

be valid. If you agree with the question, the closing

argument will go like this: “Even Sgt. Smith agreed that is

was possible that someone else planted this syringe full of

meth in the defendant’s garage!”

Response:

Typical response to this question is either a belligerent

“No, that’s possible, no way!” or a sheepish “Well, uh,

anything’s possible.” Neither is very effective.

Remember that there are certain things about which no

witness could ever be 100% certain.

Remember that the State doesn’t have to prove its case

to a mathematical certainty.





81

Isn’t it possible that . . . ? – cont’d Response:

Use your response to this question to affirm your

reasonable certainty of the defendant’s guilty and

reiterate all the reasons why: “Mr. Jones, I’m reasonably

sure that would not have been possible. The garage was

locked, only the defendant had a key, we found a partial

fingerprint on the bag that contained the syringe that

matched the defendant’s and it was exactly the same

type of syringe that we found in the defendant’s truck.”

Have you ever made a mistake?

Purpose: Similar to the “Have you ever told a lie?”

question, the idea here is to discredit the witness, but

more importantly to make the witness appear sheepish,

uncomfortable, or unreasonable, depending on the

answer.

Response:

All humans make mistakes and will continue to do so.

This fact is in no way relevant to the issue of guilt or

innocence of the defendant on trial.

The relevant question would be whether there has

been a mistake in the investigation or in the witness’

direct examination testimony; hopefully this will already

have been revealed and explained during the direct.





82

Have you ever made a mistake? – cont’d

Best response (delivered with humility and sincerity):

“Yes, Mr. Jones, I have made mistakes at times in my

life; I am only human and none of us are perfect.

However, I’m not aware of any mistakes in my

testimony today (or in the course of the investigation,

other than the ones you’ve already acknowledged on

direct, if any) If there is something specific about my

testimony that you believe to have been an error, I

would be glad to try to clarify that for you if you will ask

me.”

This answer very subtly points out to the jury the

unfairness of the attorney’s tactic in asking this

question.

The list of “didn’ts”

Purpose: To emphasize as much as possible any

failures or alleged failures in the investigation.

Example: Investigators failed to submit any of the

physical evidence seized for fingerprint testing. This

fact has already been acknowledged on direct

examination. But then, on cross, the attorney

emphasizes the point by asking a separate question

about each individual item (“You didn’t submit the

syringe for fingerprinting, did you? And you didn’t

submit the bottle for fingerprinting, did you? And you

didn’t submit the gambling records, did you?”)





83

The list of “didn’ts”, cont’d

Response: Recognize what is happening, and after

the second or third question, interrupt the tactic by

using your answer to restate the broad point: “Mr.

Jones, as I testified on direct, we didn’t submit any of

the physical evidence for fingerprint analysis.” and, if

there is a reasonable explanation for the failure,

reiterate it: “The garage where these items were found

was locked and your client admitted to us that he was

the only one who had access to it.”

Staring

Purpose: The rattle the witness; to make the witness

angry; to imply to the jury that the last answer the witness

gave is so incredible as to be unworthy of belief; to allow

a period of silence in which the attorney hopes that the

witness will be uncomfortable to blurt out more

information than was necessary to answer the previous

question; to cover up the fact that the attorney needs time

to formulate his/her next question.

Response:

Maintain professional demeanor, remain silent, take

several deep breaths, take a drink of water, and wait

for the next question.





84

Staring, cont’d

Remember that a period of silences tends to “stretch

out” in the courtroom; don’t be drawn into trying to fill

the void

Note: The reverse of this is an excellent interrogation

technique!

Speculation, hypotheticals, “if” questions

Purpose: To distract the jury from focusing on

the true facts of the case.

Example: “If my client’s ex-wife hadn’t called you

and told you he was selling drugs, you would

never have been investigating him, would you?”

Response:

It’s irrelevant what might have happened if the case

had progressed differently.





85

Speculation, hypotheticals, “if” questions,

cont’d Use the answer as an opportunity to restate what did

happen: “Ms. Smith, I can’t speculate on that, because

it didn’t happen that way. The facts of this case are

that Ms. Jones did call us and alert us to the fact that

your client was transporting cocaine, and so we

followed him and when we saw him run a stop sign we

stopped him for that observed violation, and then my

dog alerted me to the fact that there was cocaine in his

car and we searched and found it.”

The incomplete report

Purpose: To cast doubt on the credibility of the

witness by pointing out things that were left out of

the report and implying that there might be other

important facts that were also left out. This line

of cross almost always begins with the attorney

submitting to the witness a series of friendly and

seemingly reasonable questions about the

importance of good report-writing. You can see it

coming a mile off.





86

The incomplete report, cont’d

Response:

Don’t be led into responding blindly to the lead-in

questions. You are expected to prepare a report which

is reasonably complete and reflects the important facts

of the case, and you should agree with this proposition

and only this proposition.

The rest of your response will depend on what was left

out of your report.


If it was a major fact that really should have been

included, then hopefully this will already have been

dealt with on direct, so you can just humbly re-

acknowledge the omission while pointing out that

you’ve already answered the question, and reiterate

your previous explanation if there is one: “Ms. Smith,

as I testified on direct, I did leave out the fact that there

was another passenger in the back seat of the vehicle.

Your client claimed all the marijuana in the vehicle, and

based on that we elected not to arrest Mr. Allen, and so

I didn’t include his name in my report.”





87


If the attorney is asking about some minor detail that

no reasonable officer would have included in his or her

report, you can admit the omission and explain why

you left it out: “No, Mr. Jones, I didn’t make a note of

what kind of shoes your client was wearing at the time

of his arrest. I didn’t view that as being a relevant

factor in the investigation.” The proper attitude to

display here is that you are a professional investigator

who knows how to “separate the wheat from the chaff.”

Do not answer with a casual “I didn’t think it was

important.”

Mistakes in the report

Purpose: Similar to the incomplete report, to

case doubt on the credibility of the witness by

pointing out errors in the report and implying that

there might be other items in the report that were

also erroneous. Almost always begins with the

attorney asking a series of friendly and

seemingly reasonable questions about the

importance of accurate report-writing. Again, you

can see it coming a mile off.





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Mistakes in the report, cont’d

Response:

Again, if there is a major error in the report, you should

have already caught it and pointed it out to the

prosecutor; generally the prosecutor will bring such a

problem to the jury’s attention on direct examination in

order to diffuse the impact of the error. If the error has

already been discussed on direct, you can simply re-

acknowledge it, while pointing out to the jury that the

defense attorney is just re-hashing: “Yes, Mr. Jones, as

I testified on direct, I did transpose the first and second

digits of the defendant’s house number on the second

page of my report. It was a typographical error.”

Mistakes in the report, cont’d

If the error has not already been discussed on direct,

you will simply have to acknowledge it and explain it as

best you can. Do not be defensive. This is not a good

time for you to argue that the mistake was irrelevant.

Your report should be accurate, for exactly the reason

that you don’t want to have to admit these kinds of

mistakes on cross-examination. Be humble. The jury

will respect you for being willing to admit your mistake.





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You refused to discuss this case with me

before trial…. Purpose: To leave the jury with the impression that the

witness is biased and unwilling to be fair to the defendant.

Response: If you have followed the suggested course of

action in the “Preparing for Court” section above, you can

respond as follows: “Mr. Jones, I didn’t refuse to talk with

you. I simply told you that to be fair to both sides, I would

prefer that you, and I and Ms. Baker, the prosecutor, sit

down together to discuss my testimony. That way

everybody could be equally clear on exactly what my

testimony was going to be.” You can also point out that you

prepared a complete report of your actions in the case, and

that it is your understanding that the defense attorney has

been provided a copy of that report if he was willing to

engage in reciprocal discovery with the State.

Badgering/belligerent/argumentative

Purpose: To cause the witness to lose his

composure and appear unreasonable and

overbearing - like a stereotypical “bad cop.”

Response: Breath deeply and maintain your

composure, and be super-polite. It takes two to

fight. Again, it is better for the jury to perceive

you as being the victim of an unfair cross-

examination by an abusive jerk than to view you

as being an abusive jerk!





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You’re not sure about that, are you?

Purpose: To raise reasonable doubt as to the guilt of

the defendant by getting the witness to admit that he is

unsure of himself.

Response: Remember that any person on earth could

be wrong on some occasion about something. The

real question is whether you are sure enough to be

testifying to the particular fact; presumably if you have

already stated the fact under oath, you are so

convinced. Therefore, don’t give in by admitting that

you “really aren’t sure” when the real truth is that you

are as sure of the answer as any reasonable person

could be.

Condescending/ridiculing/laughing at the

case

Purpose: To imply to the jury that no really

intelligent or capable person would be a law

enforcement or animal control officer in the first

place; to make the officer witness feel inferior; to

imply to the jury that the trial is about a silly,

unimportant charge made by a silly, unimportant

officer, and that the jury should, therefore pardon

the defendant even if he is guilty.





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Condescending/ridiculing/laughing at the

case, cont’d

Response: You are a professional. Assuming that you

have done your job well in this case, you have every

reason to be proud of your efforts and your service to the

community. Not everyone is capable of doing the job you

do. Your job was to investigate a crime and bring the

guilty party to trial and you have done so. Stand tall, and

clearly convey by your answers that you are completely

satisfied with your job and confident in your investigation.

This is one of the rare situations in which the witness may

consider making a polite request for the attorney to

repeat his question, as if you are honestly puzzled as to

why anyone would ask such a thing. This has the subtle

effect of letting the jury see the tactic for what it is.

Use of legal “terms of art” in the question, asking

witness to draw legal conclusions, asking the witness

the “ultimate question”

Purpose: When an attorney uses legal terms of art like

“probable cause”, “reasonable suspicion”, “plain view”,

“exigent circumstances”, “arrest”, and the like, the

attorney is trying to entice the officer into stating an

incorrect conclusion about some point of law. When the

attorney asks the witness the “ultimate question” (guilt or

innocence of the defendant), the attorney is implying to

the jury that the witness has made up his own mind and

therefore must be shading, or worse, fabricating his

testimony to support his conclusion.





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Use of legal “terms of art” in the question, asking

witness to draw legal conclusions, asking the witness

the “ultimate question”, cont’d

Response:

Make absolutely sure you know what you are talking

about if you are going to use legal terms of art.

If you are unsure, don’t use legal terms, state facts.

The proper response to the “ultimate question” would

be: “Mr. Jones, it is up to the jury to decide whether

your client is guilty or not. It is my job to completely,

fairly, and accurately report the facts to them so they

can make that decision, and that is what I have done.”

Questions?





93

Contact Information

Kimberly Schwartz

Senior Assistant District Attorney

Chattahoochee Judicial Circuit

100 Tenth Street – Third Floor

Columbus, GA 31901

Telephone: 706-653-4336

Email: [email protected]

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