Testifying in Court

[mstueven]

Really just a talking point, but I'm curious how many PSD's have testified in court regarding their underwater activities? What was your experience like? Do any of the PSD training programs include at least a brief section on this? If not, is it something that should be included, especially in light of the fact that so many PSD's are fire/rescue rather than law enforcement?

I have done so only once, during a capital murder trial in which we helped recover the victim's vehicle from a lake. The defendant was ultimately found guilty and sentenced to death, partially because of evidence recovered from that vehicle. As a career law enforcement officer, testifying wasn't a huge issue for me, although it was a bit unusual to be testifying about dive operations in front of a jury.

 

[Gary D.]

For those of us who have been in Law Enforcement for any length of time at all testifying in court is no big deal and just a part of the daily grind. I’d say “Routine” but I hate that word in this business. It gets people killed.

If you want to better prepare yourself, go sit in on some trials. It’s no big deal. Just answer the questions truthfully, don’t go beyond the questions unless you know you can get a punch in, look at the judge or jury when you answer and stay as relaxed as possible. They expect more from us (LEO’s) than the general public, Fire, EMS or yes PSD’s. You’re not expected to be perfect.

A good attorney will interview you prior to the trial and SHOULD know what the answer will be before they ask it.

It’s no big deal. Just state what you KNOW.

 

[mstueven]

I agree Gary...for me testifying is a a pretty 'regular' thing. I was thinking more of the many FF's out there who rarely, if ever, have that experience unless they are fire investigators. And just in general, if anyone else had any experience - good or bad?

My experience was fairly mundane. The prosecutor asked questions about my qualifications, then had me describe the search techniques used on the first day, and then describe the actual recovery of the victim's vehicle from the water on the second day. Some photos of the vehicle while it was submerged were introduced as evidence, along with a picture of it once we got it out of the water. The prosecutor also asked me to explain, in very general terms, the mechanics of a vehicle sinking.

I believe the primary goal of the testimony was to show chain of custody between the recovery and ultimately the evidence seized from the vehicle. Interestingly, I think the underwater photos had a noticeable impact.

There was no cross examination.

 

[horsediver1]

Total agreement with the testimonial conversation. For agencies that do rely on Non-Law Enforcement PSD's I would offer this suggestion.

Have your Investigators and Local PSD's do a round table discussion on how to proceed with the "Underwater Scene" prior to any recoveries so everybody is on the same page.

The main reason especially for areas without a lot of experience with water recoveries it becomes how fast or efficient a recovery can be made and entrance into evidence becomes a reactionary portion of how to salvage a case that may have started out looking as an accident evolving into a homicide.

 

[Jim Baldwin]

In nearly 25 years of law enforcement I have testifed at numerous prelimary hearings as well as trials in both state and federal court. It does get easier and your confidence level increases with experience. However in all this never a diving related case.

Years ago I found it very useful to put together a list of general questions for the prosecutor to ask. I think this is especially true for someone who is not in court a lot.

These questions should be about your background; how many years have you been a FF, PSD, LEO, criminal investigator. Training qualifications; PSD, Instructor trainer, S&R speciality schools, military training as well. Number of dives, you have made, etc.

Also have you ever testifed in court before? If so, where? And were ever recognized as an expert by the court.

All these things add crediblity to you and what you did.

I would venture to say that most prosecutors have very little knowledge of the training that it takes to become a PSD. And whether it is a judge or jury trial this material helps show that you are a professional.

Something that your department or agency might want to do is invite a local Assistant District Attorney or Prosecutor and even a criminal defense attorney to come give some talks on courtroom testimony as well as evidene gathering procedures. The chain of evidence becomes very criticial when you are the only person that saw or gathered a critical piece of evidence.

For years recruits going through police academies have received classroom training on courtroom procedures and there are very few things that can take the place of a good prosecutor or defense lawyer helping you get prepared.

Also realize that what you see on television is very different than what goes on in a real courtroom. There are no surprise witnesses. There are rules of discovery and you can only testify about what you did and how you did it. No hearsay. Answer the questions that you are asked and don't speculate.

 

[ditch-diver]

Lots of good points here, and a good question to ask. Those of us who routinely testify due to being on the job can sometimes forget how nerve-wracking it can be for a 'civilian'.

Great point by Jim about talking to the Prosecutor before hand as it is likely they are not familiar with PSD activities. Most I have met welcome the chance to brainstorm on questions to ask about the job. Trust me, they like to look good and this'll help them too.

One thing I cannot stress enough..., for us LEO's and civilians alike..... TAKE GREAT NOTES!! At the end of every dive, while fresh in your mind.., lots and lots of notes. I have gotten called on recoveries a year and a half after the job is done. Trust me, if you think you'll remember important details after a year and a half and another 50 or 60 diver operations in between..., you'll appreciate having these very detailed notes to refer to. If you want to test your note taking, write up an op, and let someone on the team who was not there read them over. If they do not have a picture of exactly what took place, you have more writing to do.

 

[Gary D.]

Also realize that what you see on television is very different than what goes on in a real courtroom. There are no surprise witnesses.

WHAT?You mean Perry Mason isn't real!! And I thought he was my hero.

No matter how real it seems on the tube that just isn't the way it is. Boring doesn't get good ratings.

 

[mstueven]

Man...ain't that the truth...court is usually pretty boring. The only people who enjoy watching court TV are...well...people like us.

+1 on good notes / report writing, and definitely another area that LEO's hold an advantage, having typically more paperwork than our FF brethren.

Something else to consider is having your prosecutors come out and watch a dive operation or two so they better understand the process. As with any case, the prosecutor and I went over Q&A in prep for the trial, and he knew right up front what answers to expect.

Have to agree with making sure the team realizes that any case could wind up in court as well. You never know when a particular fact might make for a Perry Mason moment...okay not likely, but still...?

 

[Tropicalwolf]

+1 on good notes / report writing, and definitely another area that LEO's hold an advantage, having typically more paperwork than our FF brethren

Those bucket-heads are STEP-brethren at best

 

[jencks23]

About 8 years ago I had to testify in court about a fatal MVA and it fairly painless. I spoke to the prosecutors before I was called to the stand so that might have helped. One thing I have done since I joined the fireservice 23 years ago is to keep a journal of everycall and every year. I now have 23 separate notebooks. I made sure that if I went to the call I made note (Keepng HIPPA in mind) and if I didnt make the call I made sure to still record the address and mark that I didnt respond.
Another thing that you can do in you have the opportunity is to take the National Fire Academy's "Courtroom Prep Class". I took it three years ago when I became chief and it was an eye opener.
More importantly is to tell the truth about what you did and saw, as long as you do that and don't add to it you should be all set