Chapter 2 Early Involvement: the Prosecution

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 2 Early Involvement: The ProsecutionTeamwork

As a prosecutor, it is imperative that you get involved early in the investigation of cases of murder. This does not mean that you become the lead investigator. On the contrary, you should be a source of advice, a sounding board, and a helpful member of the investigative "team." The team structure provides the best and most successful framework for prosecution-investigator relationships, and is essential in higher-stakes cases such as homicides.

It is essential because, as the prosecutor, you can help the investigators build an investigation that will be the foundation for a successful prosecution of the criminal. The goal of investigations shouldn't be just to determine who committed the crime or how it was committed. We may know the answers to these questions, but if there is insufficient evidence to successfully prosecute the culprit, then the investigation is not complete. The police agency with a goal of merely identifying the killer, arresting him, and then logging "case closed" into their statistical database is not a model police agency. The best police agencies have as their ultimate goal the successful prosecution of the perpetrator. This means that in the ideal model the police want the advice of a prosecutor. They want the prosecutor on their team.

Application of the teamwork concept is essential for one other reason: It is ethically required. In February 2008, the American Bar Association adopted a set of standards for prosecutorial investigations. These standards—or a version of them—are expected to be adopted by most state bar associations.

Standard 1.3, Working with Police and Other Law Enforcement Agents, provides, in pertinent part:

(a) The prosecutor should respect the investigative role of police and other law enforcement agents by:

(1) Working cooperatively with them to develop investigative policies; and
(2) Providing independent legal advice regarding their investigative decisions.¹

Standard 1.3 also provides that the prosecutor "should be aware of the experience, skills and professional abilities of police and other law enforcement agents assigned to an investigation,"² and that "the prosecutor's office should assist in providing training to police and other law enforcement agents concerning potential legal issues and best practices in criminal investigations."³ Standard 1.3 even stresses that "before and throughout the course of complex or non-routine investigations, the prosecutor should work with the police and other participating agencies and experts to develop an investigative plan."⁴

So, if you are a prosecutor but not a trained investigator, what is your role? You can first ensure that the investigators understand the elements of the offense, as that offense is defined by the appropriate statute. You will need evidence of each element in order to successfully prosecute. This means that as you are advising the investigators, you must ensure that they understand what evidence they need to be gathering to prove that the defendant committed the crime.

For example, let's assume that your jurisdiction's murder statute provides that first degree or aggravated murder has a mens rea of "knowing or intentional." This means, of course, that you have to prove that element beyond a reasonable doubt. So what evidence do you have that the killing of the victim by the defendant was neither accidental nor in self-defense? What evidence is there that the defendant actually intended to kill? Without this analysis, the evidence—and thus the investigation—is not complete. Some of the most difficult cases for a prosecutor occur when "everyone knows" that the defendant is guilty, but the investigation has not yet provided sufficient evidence to prove what "everyone knows."

If the prosecutor works in a very rural area that lacks the investigative resources of a more populous city or county, forming a complete investigative team may be even more problematic. There may be only one or two investigators, and they may have other demands on their time besides the investigation of this particular homicide. The investigators may not be fully trained in some of the latest scientific methods, or may not have the equipment that larger agencies have.

What can you do to help? You can be aware of the resources available elsewhere. Do larger agencies in the area, perhaps from a nearby county, have the training and equipment you could use? Does your state's attorney general's office have criminal investigative resources you could use? What about the medical examiner's office? How about the local or regional federal authorities?

What if you are inexperienced in murder cases? How can you help prepare for the investigation and prosecution of a murder case in your jurisdiction? You can gain experience vicariously, such as by attending training sessions, reading this book, or even just by talking to other prosecutor and investigators who have experience in this area. When a murder occurs, you can then call on those resources in other offices for advice and assistance.

Interview Your Witnesses; Don't Become One

When a prosecutor is assigned to an investigation, the prosecutor must avoid being the only person speaking with a witness. An unwitnessed interview puts the prosecutor in the untenable position of being the only person who can confront the witness if his testimony at trial contradicts what he said previously. An investigator must, therefore, be present at such interviews. It is not the prosecutor's job to replace the investigator. Nevertheless, the prosecutor can—and should—view the crime scene, suggest and participate in witness interviews, suggest what evidence to gather and analyze, help coordinate assistance from other agencies, and discuss with investigators what evidence might defeat potential defenses (such as self-defense, accident, or insanity).

Visit the Scene

While a well-written police report might seem to provide all the details needed, there is no substitute for seeing a crime scene yourself. While a later chapter is dedicated to crime scenes, it must be said that the prosecutor who remains in his ivory tower office and refuses to do "cop work" because "that's their job" is a fool. An actual scene can create what the written word and even photographs can-not—a feel...