Narcotics Division Chattahoochee Judicial Circuit 1 Putting It All - - PDF document
Putting It All Together: Courtroom K9 Handler Intensive GPSTC Forsyth, GA January 18, 2019 Presentation for the Georgia K9 Handler Courtroom Presentation for the Georgia K9 Handler Kimberly S. Schwartz Senior Assistant District
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 1
Courtroom Presentation for the Georgia K9 Handler
Kimberly S. Schwartz Senior Assistant District Attorney Narcotics Division Chattahoochee Judicial Circuit
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 2
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 3
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
funds and other resources can be best used, are most needed, or are most likely to achieve success
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 4
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 5
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 6
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 7
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 8
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 9
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 10
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.
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 11
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
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)?
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 12
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
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 13
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 14
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?
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 15
the human officer is already authorized to do – but the dog can do it better, more quickly, and/or more safely.
A.
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 t beca cause se the dog can do it better/s er/safer: er:
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 16
Dog g Re Reacti ction
tantia tial l Evidenc ence e of a Substa stanti tive e Fa Fact: ct:
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 17
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 18
"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" 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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 19
When direct evidence, by inference, points to an
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
consistency with such conclusion or elimination of
evidence may point to more than one conclusion.
Direct Evidence: mental one-step Circumstantial Evidence: mental two- step
the underlying fact(s) which then….
case to be drawn from those underlying facts
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 20
The strength of circumstantial evidence depends on the extent to which the proponent
drawn To the extent that the underlying facts aren’t well-established or reasonable inferences
circumstantial evidence is weakened.
Using canine reaction as circumstantial evidence of some substantive fact requires the “two- step”:
evidence) the underlying facts, i.e., that the dog alerted and/or performed a final response
from the alert and/or the final response (other reasonable inferences have been eliminated)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 21
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?
exactly what the dog did, preferably using terminology accepted by and familiar to the courts?
Step Two wo (Re Reli liab abilit ility):
How do we convince the fact-finder that there is
the facts established about the dog’s reaction and/or conditioned response?
properly trained?
properly utilized?
response mean?
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 22
Step Two wo (Re Reli liab ability ility), , contin inue ued: d:
How do we convince the fact-finder that there is
the facts established about the dog’s reaction and/or conditioned response?
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 23
including depth of experience and provide support for a finding that handler is an expert witness
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.”?
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 24
“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.”
“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
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
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)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 25
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)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 26
Harris is v. State, 341 Ga. App. 831, 1, 802 02 S.E.2d E.2d 708 (2017) 7)
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’”.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 27
Harris is v. State, , 341 Ga. . App. . 831, 1, 802 02 S.E.2d E.2d 708 (2017) 7)
Harris filed motion to suppress citing lack
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.”
Harris is v. State, 341 Ga. App. 831, 1, 802 02 S.E.2d E.2d 708 (2017) 7)
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 28
Harris is v. State, , 341 Ga. . App. . 831, 1, 802 02 S.E.2d E.2d 708 (2017) 7)
At hearing on motion to quash, State
argued, relying on Florida v. Harris, that the dog’s reliability was presumptively established by demonstrating certification
having to do with training – which the State somehow distinguished from reliability - were, therefore irrelevant.
Trial court granted motion to quash
Harris is v. State, 341 Ga. App. 831, 1, 802 02 S.E.2d E.2d 708 (2017) 7)
“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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 29
Harris is v. State, , 341 Ga. . App. . 831, 1, 802 02 S.E.2d E.2d 708 (2017) 7)
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
is likely that the defendant will be able to subpoena those records and cross-examine the handler regarding them.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 30
Oldest est Georgi rgia Case: e: Fite e V. State, 16 Ga.Ap
“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
track which the circumstances indicate to have been made by the
with the crime with which he is charged.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 31
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)
evidence of the reaction of a tracking dog is admissible.
corroborate other evidence of guilt.
solely on the reactions of a tracking dog.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 32
Arson/murder; GBI DOFS analysis of fire debris
found no accelerants, although there was some
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.
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’”.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 33
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 34
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:
approach
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 35
Daubert is a higher standard than
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)]
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 36
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.”
Howe
er . . . U. U.S. v. Ques esada-Ramos
Fed.App pp. . 909 (11 11th
th Cir. 2011)
1)
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 37
U. U.S. v. Ques esada-Ramos
inued ed
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. U.S. v. Ques esada-Ramos
inued ed
“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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 38
See e also:
arris s v. Gourley, No. 1:10-CV CV-99 99 (WLS) LS), 2013 U.S. Dist. LEXI XIS S 43077 (M.D. Ga.
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
Harris s v. Gourley, continued: ed:
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 39
Al Al-Ami 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.
Al Al-Am Amin v. State, 278 Ga 74 (2004), continue inued:
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
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 40
Al Al-Ami Amin v. State, , 278 Ga 74 (2004), continue inued:
“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 .App. . 690 (2007), 7), rev.’d on ot
er grou
s 285
09):
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 41
Bass v. State, , conti tinued ed:
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.
Bass v. State, , conti tinued ed:
“….if the conclusion at issue could be drawn by anyone based on observation, there would be no need for expert
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
standards are met for admissibility.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 42
Bass v. State, continue nued:
“….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.”
Oldest Georgia case holding dog alert provides
PC for vehicle search: Donner v. State, 191 Ga.
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)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 43
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.”
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
place.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 44
Additi tion
ia cases ses re narco cotics ics detect tection ion dogs s foundati tion
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 45
Persu suasi sive e autho hori rity y to have ve in yo your not
ebook
(and d share re with yo your r prosec rosecutor)
Harper er/Daub auber ert qu quest estion
ever comes s up re yo your r narc rcotics s dog: g:
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)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 46
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
Ad Additiona
ructive cases es (NOT control
g autho hority for Georgi
th
Circ rcuit):
Trejos v. State, 243 S.W.3d 30 (Tex.
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]
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 47
Addition
al addition
ructive e case (NOT controlling g authori hority y for Georgi rgia or 11 11th
th Circ
rcuit):
Perkins v. State, No. 01-08-00205-CR,
2009 Tex. App. LEXIS 7069 (App. Aug. 28, 2009) [bloodhound/tracking]
Bottom line on foundations:
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 48
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
A criminal conviction cannot be based solely on the reactions of a tracking dog.
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 49
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
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
should strongly consider pre-trial Harper hearing
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 50
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)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 51
Thorough review of
case file.
Organize file for use
in courtroom
Review transcripts
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.”
No witness is required
to talk to an attorney
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 52
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.
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 53
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
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 54
The fact-finder Judge Jury The record The future
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 55
Introduc
ing g yourself lf 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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 56
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
Speak loudly and
clearly; enunciate.
Don’t forget to breath Avoid fidgeting,
making faces, “looking up” before answering
General al Pointer ers for Witness ess Stand nd Performan ance
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 57
General al Pointers for Witness Stand nd Performan ance, e, continue inued:
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. . .”
General al Pointer ers for Witness ess Stand nd Performan ance, e, continue inued:
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 58
General al Pointers for Witness Stand nd Performan ance, e, continue inued:
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
General al Pointer ers for Witness ess Stand nd Performan ance, e, continue inued:
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 59
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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
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 . . .
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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
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
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 62
Using g Your Case File on the Witness ess Stand nd
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
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 63
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 64
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 65
Remember: The standard that will be applied to expert testimony depends
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 66
Expert opinion testimony is allowed in Georgia criminal cases when the question about which the expert is
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)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 67
The Expert Witne ness on the Stand nd
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 68
O.C.G.A. § 24-6-611 (b) A witness may be cross-examined on any matter relevant to any issue in the
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
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 69
Impeach witness [show that (s)he is not
worthy of belief]
Obtain favorable facts Cast doubt on unfavorable facts
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 70
O.C.G.A. § 24-6-611 (c) Leading questions shall not be used
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
least the answer to be avoided.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 71
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.
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,
righteous indignation at an assault on your character and/or credibility
Don’t forget to engage with the fact-
finder.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 72
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 73
Purpose: The attorney is hoping you will
slip up and give an answer inconsistent with your direct examination.
Response:
important facts of your case
Purpose: Similar to “repeating the direct”, the
attorney is hoping that (s)he can lull the witness into giving an inconsistent answer
Response:
going to get as frustrated as you are
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….”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 74
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:
slowly, the attorney can only go so fast.
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:
rude, the court reporter will hate you, and the record will be a jumble.
until the attorney finishes, and then pick up the thread
“Your honor, may I finish my answer now?”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 75
Purpose: To create and highlight inconsistencies between
witnesses
Response:
has said, because you’ve been strictly following the court’s instructions not to discuss the case.
said what the attorney is claiming, or if it’s a trick.
may not have said. I can only tell you what I know about this case.”
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:
analysis (or whatever it is), because I didn’t perform it. You would have to ask the officer who did that test.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 76
Purpose: Attorney is hoping that you’ll fail to
notice the misstatement and, by answering the question, tacitly agree with the misstated facts.
Response:
it before correcting the misstatement.
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:
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 77
Use of Inflam lammat ator
guag age in Question ion
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.”)
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 78
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
corner at that time.”)
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 79
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 dow
specific ifics
Purpose: To make the witness appear incompetent or
confused, or to create contradictions with the testimony of
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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,
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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 ve yo you ever ever made e a mistak take? e?
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 82
Have e yo you ever ever made e a mista take? e? – 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,
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
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?”)
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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.”
Starin ring
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 84
Staring, cont’d
Remember that a period of silences tends to “stretch
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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 incom
plet ete e repor
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
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 86
The incomplete report, cont’d
Response: Don’t be led into responding blindly to the lead-in
is reasonably complete and reflects the important facts
and only this proposition.
The rest of your response will depend on what was left
The incomplete report, cont’d
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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 87
The incomplete report, cont’d
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
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.”
Mistak takes es in the repor
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 88
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
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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 89
You refused sed to to discu cuss ss this is case e 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
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.
Badgerin gering/b g/bel elligeren igerent/a /arg rgume mentativ tative
Purpose: To cause the witness to lose his
composure and appear unreasonable and
Response: Breath deeply and maintain your
composure, and be super-polite. It takes two to
you as being the victim of an unfair cross- examination by an abusive jerk than to view you as being an abusive jerk!
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 90
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
you “really aren’t sure” when the real truth is that you are as sure of the answer as any reasonable person could be.
Condes escend cending/r ing/rid idicu iculin ing/l g/laugh ghing ing at the e case se
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
the defendant even if he is guilty.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 91
Condes escen cending ing/rid /ridicu iculin ing/lau g/laugh ghing ing at the e 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
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 ss to to draw legal conclusi sions, s, asking the witness ss 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.
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 92
Use of legal “terms of art” in the question, asking witness ss to to draw legal conclusi sion
s, asking the witness ss 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.”
Putting It All Together: Courtroom Presentation for the Georgia K9 Handler K9 Handler Intensive GPSTC – Forsyth, GA – January 18, 2019 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: kschwartz@columbusga.org