a prosecutor’s perspective · indicate at the top of your report whether the incident was...

50+ WAYS TO WEAVE YOUR REPORT

A PROSECUTOR’S PERSPECTIVE

Presented by:

David Daggett

Maryland Traffic Safety Resource Prosecutor

ddaggett@mdsaa.org

410-203-9881

Course Description• Tips on writing an Impaired Driving report that will allow you to recall

the crime months – perhaps even years - later.

• Write a report that will give you the ability to fully present your case to the judge, jury and most importantly, the prosecutor.

• Put together a strong case and testify with confidence.

• Save yourself from embarrassing gaffs and those long, sweat-inducing pauses while on the stand.

WRITE EASY TO FOLLOW REPORTSCHRONOLOGICAL ORDER

A. Preliminary InformationB. Initial ObservationsC. Vehicle in MotionD. Personal Contact with DriverE. SFSTsF. ArrestG. Intoximeter/BAC resultsH. Statements Made by SuspectI. General Catch All

PLUS SOME GENERAL DO’s AND DON’T’s

SEPARATE AND DISTINCT SECTIONS

•Highlight the section headings in bold;

•Separate paragraphs;•Space them out. Remember, you will probably have to refer to your report while on the stand.

A. PRELIMINARY INFORMATION1. Indicate at the top of your report whether the incident was

recorded.

2. Note the BAC result or Refusal at top of report.

3. The investigating officer’s name should be prominently displayed

early on as well as occasionally throughout the

narrative. For example, “I, Officer Tom Brady……..”

Use this format at least once per page as reports get mixed up and

out of order by the time the prosecutor gets them.

4. Include your legible name and ID # on your signature line. This helps

for summonsing purposes.

A. PRELIMINARY INFORMATION (cont.)

5. Include names of other officers and their roles in the investigation, including the Intoximeter Operator.

6. Include a stock paragraph with your credentials, containing such information as DUI related trainings, awards, certificates, special assignments. With this you can cut and paste.

7. Include an estimated # of DUI stops investigated and the estimated # of DUI arrests made. Update every few months.

8. Weather and lighting conditions.9. Traffic conditions.

B. INITIAL OBSERVATIONS

B. INITIAL OBSERVATIONS (cont.)

9. What first drew your attention to the suspect/vehicle?10. How long did you follow the suspect vehicle?

- Time- Distance

11. Make sure that the time of the stop and the time of the arrest are accurate.

- The time of the initial observation and time of arrest should not be the same or just minutes apart.

12. Was radar or pace the basis for the stop? If so, was the instrument or speedometer tested before and after your shift and found to be in proper working order?

B. INITIAL OBSERVATIONS (cont.)

13. Note if other occupants were in the suspect’s vehicle and where they were seated. Were they impaired?

14. Be sure to put the suspect “behind the wheel.”

- Was the suspect seen driving?

- Did suspect admit to driving to that location? (Especially if there are others in the vehicle.)

C. VEHICLE IN MOTION

RAS v. PC

• While Reasonable Articulable Suspicion is all that is required, you are better off having Probable Cause as the basis for the stop.

Rule of ThumbWhenever possible, a stop based upon probable cause, is preferred over a stop based upon RAS. It is less subject to scrutiny by the courts and therefore, less subject to suppression

C. VEHICLE IN MOTION (cont.)

15. Note all examples of erratic driving.

• Speed, Red Light or Stop Sign Violation.•Weaving within the lane.

• Speeding up and slowing down.•Manner of Vehicle Stop/Striking Curb.

• Did other vehicles have to swerve to avoid suspect vehicle?

Examples of Erratic Driving

• Erratic Braking.

• Excessive delay or pause when red light turns to green.

• Was suspect impeding traffic?

• Slumped over wheel or head drooping.

• Failure to lower high beams to oncoming traffic.

Manner of Vehicle Stop

Manner of Vehicle Stop16. Evidence of wayward stop.

• Driver appeared oblivious to lights and siren.

• Sudden, erratic stop.

• Struck or jumped curb.

• Came to rest at an angle.

• Failed to put vehicle in “Park” and drifted.

Flight to Avoid Apprehension17. Did suspect attempt to avoid apprehension?

Your speed? Suspect’s speed? Emergency equipment on?

D. PERSONAL CONTACT

D. PERSONAL CONTACT (cont.)

17. Physical Appearance:

- Hair unkempt.

- Odor of Alcohol – Strong? Medium? Mild?

Emanating from breath? Person? Vehicle?

- Clothes disheveled.

- Red, bloodshot, glassy eyes.

- Slurred speech.

- Fumbling for license.

- Poor coordination/balance.

D. PERSONAL CONTACT (cont.)18. Describe all observations that seem to indicate

impairment. Be descriptive.

-The 4 Ps:PukePissPoopPass Out

- Clothing and type of shoes (esp. if a female)

- Masking Agents (gum, mints, cigarettes)

D. PERSONAL CONTACT (cont.)

19. If suspect says they had “two drinks”, ask them what kind of drinks; the brand of beer; size of drinks; when they finished their last one; were they eating anything.

20. If they say the name of a mixed drink, ask them what type of alcohol is in it.

D. PERSONAL CONTACT (cont.)

21. If suspect says he was at a bar, get the name of the bar and when he left it.

22. If you see open containers of alcohol, note the size; whether they are totally empty; half empty; cold to the touch , the % of alcohol listed on can/bottle;

23. Always write down any incriminating statements the suspect makes. If not written in your report and not turned over in discovery, they may not be admissible.

E. Standardized Field Sobriety Tests

E. STANDARDIZED FIELD SOBRIETY TESTS

24. What kind of shoes was the suspect wearing?25. Describe the weather conditions.26. Describe the location and surface where the SFSTs were

conducted.27. Describe lighting, including whether or not your emergency

equipment was in operation (Not shining in suspect’s eyes.)

28. Always explain and demonstrate the SFSTs the exact same way. That enables you to easily testify that you conducted them as per your standard protocol and won’t always have to write them out in your report.

E. SFSTs (cont.)

29. Note any observations that aren’t necessarily clues, such as swaying, mumbling, repetitiveness, forgetfulness, changes in demeanor.

30. If a test/tests are stopped, fully document the reason but avoid getting in the habit of stopping tests for the “suspect’s safety”, unless absolutely necessary.

31. Use both narrative and the diagrams from the AIR to document performance of SFSTs.

32. Make a separate paragraph for each SFST.33. Ask about any medication the suspect may be taking and what

effect it has.

E. SFSTs (Cont.)

34. Any physical issues that would effect balance/coordination.

35. Did suspect acknowledge they understood instructions?

36. Always list the number of clues in relation to possible clues (6/6, 4/8, 3/4 ).

37. List the specific steps in which in which heel to toe was missed and by how much.

E. SFSTs (Cont.)

38. List the steps in which they stepped off line and by how much.

39. List the specific number on which suspect put foot on ground.

40. Try and list the specific violations that constituted the actual clues. For example: 1. Couldn’t maintain instructional stance; 2. Stepped off line; 3. Missed heel to toe by more than one inch; 4. Improper Turn.

41. If suspect refused to take a test, explain why.

ADDITIONAL FIELD SOBRIETY TESTS

Additional Field Sobriety Tests

42. After going thru the HGN, OLS and W&T tests, it is OK to offer non-

SFSTs, such as stating the alphabet from one letter to another; counting

backwards from one number to another; the finger to nose test; the

finger dexterity test or the Romberg Balancing Test. These can be

offered if the suspect refuses the SFSTs or claims to have physical

limitations that prohibit them from doing the “Big 3.”

• PLEASE CHECK WITH YOUR DEPARTMENT FOR APPROVAL BEFORE

INITIATING THESE ADDITIONAL TESTS.

F. ARREST

F. ARREST (cont.)

43.Uneventful? Suspect polite and cooperative?44. Offered a bribe? How much?45. Resisted? Combative? Assaultive?46. Cursed or spat?47. Threatened your family?48. Said, “I know people. I’ll have your badge!”

G. INTOXIMETER or BLOOD TEST

G. INTOXIMETER RESULTS (cont.)

49. Was Advice of Rights form read;50. Observation time completed;51. Submitted to or refused test;52.Insufficient sample based upon lack of

cooperation;53. RESULT.

H. STATEMENTS OF DEFENDANT

H. STATEMENTS (cont.)

54. Pre or post-arrest?55. Pre or post-Miranda?56. Blurt or spontaneous statement?57. How many drinks? What kind of drink? Size? Last

consumed?58. Statements regarding their state of sobriety;59. Apologies.

I. GENERAL CATCH ALL

I. GENERAL CATCH ALL (cont.)

60. If the suspect was polite and cooperative, put that in your report.

61. Be sure that the name and gender of the suspect match up throughout your report. No cut and paste.

62. List the suspects full contact information, including address, cell number and e mail address, if possible.

63. List contact information of all witnesses to the case, including victims and other officers.

I. GENERAL CATCH ALL (cont.)

64. List all citations issued.

65. Always begin and end your report with “All events occurred in _________________ County.

66. Be polite and courteous at all times. We know it isn’t always easy out there but you don’t want to end up on YouTube.

DO’s AND DON’T’s

67. Document every incriminating statement the suspect makes;68. Document inconsistent responses;69. Document every step of the BAC process;70. Document all erratic behavior, including mood shifts;71. Document any statements made by suspect that may “justify”

poor SFST performance;72. Be polite and courteous at all times. We know it isn’t always easy

out there but you don’t want to end up on YouTube.

DO (cont.)

73. Use Spell Check;

74. Double check names and dates;

75. File a supplemental report if you find errors. This should be done regardless of whether it helps the State or the suspect;

76. Note in the beginning of your report whether or not the stop was recorded;

77. “On a scale of 0-10, with 0 being sober and 10 being the drunkest you’ve ever been, where would you rate your sobriety right now?”

DON’T• Cut and paste. Using a report template is fine, but the only saved

information should be your name, the headings for each section of your report and your CV/Trainings;• Cutting and pasting leads to too many embarrassing errors, such as

name and gender of the suspect, date and location of the stop, vehicle make and model. It can make you look bad and call into question your memory (and your competence.) That can lead to reasonable doubt;• Use too much “cop speak” in your reports or when testifying;• K.I.S.S. The acronym for “Keep It Simple Stupid,” does not apply to

your report!

THE END

Part 2: CASE PREPARATION

Preparation

Before anything else, preparation is the key to success.

• Alexander Graham Bell

Preparation

•Start collecting evidence from the first moment of contact.•Document with notes, tape recorders, video camera and photos.•Anticipate possible defenses during the investigation. Strengths and weaknesses.

Trial Preparation

•Assume your prosecutor knows nothing about the case other than your report.• Educate your prosecutor before trial via

a well-written and complete report. •Have your materials prepared.•On complicated cases, meet with the

prosecutor prior to trial.

Trial Preparation

•Keep a CV of your trainings and credentials. Update it periodically.•Collect missing information (supplemental reports, lab reports, booking photos).•Turn it over to the prosecutor ASAP!

Trial Preparation•Look for the weak spots of your case.•Try and resolve problems before trial.•Document any changes, corrections, etc.•Review reports and evidence prior to trial. •Anticipate what the defense might attack.

Exhibits•Don’t offer anything as an exhibit that you

want back at the end of trial – Make copies!• Ensure that everything is totally up to

date.•Make sure they are “clean” copies.•Get all your evidence to the prosecutor

early for discovery

Part 3: Qualifying & Testifying

Generally Speaking

• You want to help the judge/jury understand that the defendant was under the influence of alcohol and/or drugs.

•Defendant’s mental and/or physical faculties were appreciably impaired

Qualifying as an Expert

•You may have to qualify as an expert in HGN, DRE and Crash Reconstruction. •You are an expert - Let the judge/jury know it•Don’t undermine your training and experience•Relate training and experience to this arrest - It makes the jury think all your hard work was for them!

Qualifying Questions

State your name and occupation.

By whom are you employed?

How many years have you worked in law enforcement?

What is your educational background?

What specialized training have you received in your field?

Qualifying QuestionsHave you ever participated in a “drinking lab”? How often?What is the purpose of a drinking lab?During the lab(s), did you have an opportunity to administer the Standardized Field Sobriety Tests to people and then compare your opinions regarding their levels of impairment to their actual breath alcohol levels?Were you able to accurately and reliably discern their level of alcohol impairment?

Qualifying QuestionsApproximately how many people have you stopped for DWI/DUI?Did you arrest everyone you stopped whom you initially suspected was DUI’?Why not?How many times have you administered the Standardized Field Sobriety Tests?How many people have you arrested for DUI/DWI? After you arrested them, did you have an opportunity to give them breath tests?Did you compare your opinions regarding the arrestees’ levels of impairment to their actual breath alcohol levels?

A little extra information•Know how many people you have seen under the influence?•Know how many stops, arrests and non-arrests you have made?•Answer the question with confidence!

Testifying: Words Matter!

Describe clearly what you observed.

Facts? Conclusion? Opinion?•Fact•The truth about an actual event or observation

•Conclusion•A reasoned deduction or inference

•Opinion•A personal view, attitude, or appraisal

DIRECT EXAMINATION

• You can most likely give your opinion as to the defendant’s sobriety, but be sure to back it up with WHY and HOW you reached that determination!

• “I based my opinion that the defendant was crockedbecause of the following observations…”

Scope of Cross Examination

A witness may be cross-examined on any matter relevant to any issue in the

case, including credibility.

Cross Examination• Forget about control, you have none.• Listen to the question.• Answer only the questions asked.• Don’t play games.• If you don’t know the answer, say so.• If the question makes no sense, or you cannot answer ask for a

different question.• Be as polite to the defense are you are to the prosecutor and judge.

General Tips• Know Your Stuff and Keep It Up to Date• Trainings, SFSTs, and CV.

• Articulate: What You Saw and What it Meant.• Totality of Circumstances.• If you didn’t write it down then…

IT DIDN’T HAPPEN!!!• Credibility is everything• No case is worth sacrificing your credibility or your career.

General Tips•Wear your uniform.•Don’t show your feelings or emotions•Don’t play games…and don’t be a smart-ass.•Demeanor makes more impact than content overall.•Don’t bring too much stuff with you to the witness chair.

Even more tips•WHY Should be your favorite question.• Exhibits, charts, graphs, fun stuff.•Get out of your chair, if possible.• Look at the judge/jury, but don’t stare.•Use real words and talk like a person.• Listen to the judge and the prosecutor.