Chapter 22: The Trial Process and the Investigator as a Witness
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Chapter 22
The Trial Process and the Investigator as a
Witness
Objectives
1. Briefly outline the steps in a trial process.
2. Assess the importance of a criminal investigator’s knowing the rules of evidence.
3. Describe the hearsay rule and the philosophy under which the exceptions to this rule have
Introduction
At some point during the investigation of a crime, the investigator will decide to invoke the
processes of the judicial system. If preparing for and taking a case to court were not the goal or,
at least, one of the goals of a criminal investigation, there would be little point to investigating.
That goal, however, may not always mesh with reality. Sometimes, despite the high level of
The time at which the judicial system becomes involved during the course of an investigation is
not uniform. The decision to begin involving the judicial system may come at the conclusion of
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Lecture Notes
I. Evaluating a Case
A. The Investigator
The decisions investigators must make involve a great deal of discretion. Investigators must
consider what may be termed risk factors. As suggested by Figure 22-1 in the text, the fact
B. The Prosecutor
While the investigator is investigating and deciding to make an arrest, the prosecutor is also
II. The Trial Process
Some law enforcement officers and criminal investigators are not fully aware of the order in
which a trial is conducted, because time often prohibits them from attending a complete trial
A. Jury Selection
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The courtroom process begins with the selection and swearing in of a jury. Jury selection can
last a few hours or a few weeks, depending on the selection process and the nature of the case.
The jury panel from whom the jurors in the trial are eventually picked is called a venire.
B. The Trial
The trial starts with opening statements by the prosecutor and the defense attorney. While the
prosecution is presenting its case, the questioning of witnesses it calls to testify on behalf of
the prosecution is called direct examination. When the same witness is questioned by the
defense attorney, the process is called cross-examination. If on cross-examination the
The presentation of the defense case in chief follows the same pattern as that for the state.
After the defense rests its case, the prosecution has an opportunity for rebuttal. New evidence
may be presented, or witnesses may be reexamined to clarify earlier testimony. If the
prosecutor uses the opportunity to present rebuttal evidence, then the defense is given equal
opportunity to rebut this, through the process called surrebuttal.
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III. The Rules of Evidence
Every law enforcement officer must have a working knowledge of the rules of evidence. The
rules govern what evidence the jury will be allowed to hear or see and what evidence must be
excluded from a jury’s consideration.
A. Evidence Defined
B. The First Rule of Evidence
The rules of evidence are designed primarily to keep a jury from hearing or seeing improper
C. Proof
Proof may be defined as the combination of all those facts—of all the evidence—in
determining the guilt or innocence of a person accused of a crime.
D. Testimony
E. Admissibility
Admissibility is the essence of the rules of evidence. The rules of admissibility protect the
trier of fact, generally a jury, from hearing improper evidence that may be unreliable or
untrustworthy and that may prejudice the case unjustifiably against the defendant.
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its admissibility will not affect the outcome of the case, it may be inadmissible. The test of
competence of evidence relates to evidence’s legal significance to the case. Because of certain
F. Weight of Evidence
Once evidence has been admitted into the trial, it must be weighed by the jury. Weight deals
G. Presumptions
Among the guidelines that the jury is required to follow in weighing and applying evidence
H. Inferences
An inference is similar to a presumption but differs in that the jury has more latitude in
I. Burden of Proof
In each criminal case, the prosecution has the responsibility of affirmatively proving the
allegations on which it has based its accusation. This is known as the burden of proof.
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J. Burden of Going Forward
The requirements concerning burden of proof do not mean that a defendant has no
K. Preponderance of Evidence
In a civil case, the party allegedly wronged is called the plaintiff. The plaintiff in a civil
action is not required to prove allegations beyond and to the exclusion of every reasonable
L. Order of Proof
Court procedures generally require that the prosecuting attorney prove the existence of the
M. Judicial Notice
Judicial notice is designed to speed up the trial and eliminate the necessity of formally
proving the truth of a particular matter when that truth is not in dispute. Judicial notice, then,
is proof without evidence and may be taken in three situations:
• Judicial notice may be taken of matters of common knowledge that are uniformly
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N. Types of Evidence
Direct evidence usually is the testimony of witnesses that ties the defendant directly to the
commission of the crime, such as the testimony of an eyewitness who can positively state that
the defendant committed the crime.
It is a myth that one cannot be convicted of a crime based solely on circumstantial evidence.
The broad definition of circumstantial evidence encompasses all evidence other than direct
evidence, provided that it logically connects the defendant to the crime. Circumstantial
evidence is sometimes referred to as indirect evidence for this reason.
O. The Hearsay Rule
The fact that stories tend to be changed when they are repeated makes their reliability and
truthfulness questionable. For this reason, the hearsay rule was created. Hearsay is derived
P. Exceptions to the Hearsay Rule
If the circumstances surrounding the hearsay evidence could ensure a high degree of
trustworthiness and reliability, that evidence was admissible as an exception to the rule in
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order to minimize any injustice.
A confession is an acknowledgment by a person accused of a crime that he/she is guilty of
that crime. Confessions made out of court fall within the hearsay rule. For such confessions to
A declaration concerning the facts and circumstances of the fatal injury made by the victim of
a homicide who is about to die, expects to die, and does not hope to recover is admissible as
an exception to the hearsay rule.
Q. Evidentiary Privileges
Defendants and other witnesses have a right to have certain matters of communication barred
IV. Witnesses
With the advent of the rules of evidence, procedures had to be established for requiring the
presence of people who possessed knowledge of the facts of the case. The subpoena is used for
In common law, taking an oath was a process by which individuals swore to tell the truth on the
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basis of their sacred belief in a supreme being. The affirmation is also used for people who
A. The Investigator as a Witness
The success or failure of a criminal investigation is often ultimately measured in terms of the
quality and effectiveness of an officer’s presentation of evidence to a court and jury.
Most departments have policies that terminate an employee (officer) for lying. In those cases,
when such officers are retained by the agency even after a major violation is discovered and
corrected, the officers cannot testify in court and are relegated to non-sworn duties in
communications, call-taking, records, and the like. These officers are often called, Brady
officers and are essentially barred from patrol and investigative functions where there is a
strong possibility that the officers could make an arrest and be required to act as a witness.
Law enforcement authorities disagree as to whether officers should wear uniforms or civilian
clothes to court. In any event, dress should be clean and neat. If civilian clothes are worn, a
degree of formality is appropriate. Law enforcement witnesses should be conscious of their
Chapter 22: The Trial Process and the Investigator as a Witness
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demeanor from the time they arrive at the courthouse.
The purpose of cross-examination is to ensure that testimony given under direct examination
has been accurate and truthful. Through cross-examination the attorney attempts to impeach
witnesses called by the opposing side. Impeachment is the process of discrediting or
contradicting the testimony of the witness to show that the witness is unworthy of belief.