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
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
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
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
Beyond the Basics
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
6
Except . . .
Three basics points:
Basic Point #1:
STUDY YOUR
REPORT
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
7
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
8
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
9
Basic Point #3:
Video
Awareness
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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.
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
11
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)?
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
12
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
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
13
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
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
14
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?
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
15
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
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
16
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
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
17
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
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
18
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).
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
19
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
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
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)
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?
• 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?
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
22
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
23
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.”?
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
24
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)
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
25
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
26
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’”.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
27
Harris v. State, 341 Ga. App. 831, 802
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.”
Harris v. State, 341 Ga. App. 831, 802
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
28
Harris v. State, 341 Ga. App. 831, 802
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
Harris v. State, 341 Ga. App. 831, 802
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.”
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
29
Harris v. State, 341 Ga. App. 831, 802
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
30
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.”
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
31
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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
32
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’”.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
33
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.”
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:
• Testing of expert’s theory
• Publication support of the expert’s method
or theory
• Error rate
• General acceptance of the expert’s
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
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)]
Carr v. State, 267 Ga. 701
(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.”
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
36
Carr v. State, 267 Ga. 701
(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.
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
37
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.”
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
38
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.”
Putting It All Together: Courtroom
Presentation for the Georgia K9 Handler
K9 Handler Intensive
GPSTC – Forsyth, GA – January 18, 2019
39
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.
Al-Amin v. State, 278 Ga 74
(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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Al-Amin v. State, 278 Ga 74
(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.
Bass v. State, continued:
“….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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Bass v. State, continued:
“….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.”
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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]
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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:
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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
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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
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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)
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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.
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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.
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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
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Who is the target audience
for your testimony?
The fact-finder
Judge
Jury
The record
The future
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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.
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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.
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General Pointers for Witness
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. . .”
General Pointers for Witness
Stand Performance, continued:
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.
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General Pointers for Witness
Stand Performance, continued:
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 Pointers for Witness
Stand Performance, continued:
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.
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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
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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 . . .
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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.
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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.
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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.
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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!
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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
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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)
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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
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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
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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
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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.
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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.
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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
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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….”
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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?”
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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.”
Putting It All Together: Courtroom
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K9 Handler Intensive
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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.”
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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.
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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.
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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.”
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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.
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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.
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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?”)
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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.
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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.
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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.
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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.
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.”
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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
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?
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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]