Some cases have tough facts, and some have complex legal issues; these cases are hard by their very nature. But then there are the ones where the arresting officer has already killed the case before the bad guy even gets booked in. Don’t get me wrong, we DAs make plenty of dumb mistakes that lose cases. But even so, we can only try as good a case as we get. So we’re gonna look at three things that can kill your case: first, Miranda, then evidence and witnesses, and we’ll wrap it up with general stupidity.

It’s no good to have a confession that can’t come in at trial, and to get it in, you have to understand the Miranda warning, which protects the Constitutional rights of a suspect subjected to custodial interrogation. You must read Miranda anytime you question a suspect who’s in custody. In Georgia, “custody” means when a reasonable person in the suspect’s position no longer believes his detention will be temporary, and this can happen way before you’ve formally arrested him. If you don’t know the standard for your state, ask your DA or training officer.

The second magic word is “interrogation,” which means asking questions. Any questions: bright lights and rubber hoses aren’t required. If they just start spouting off, it’s fair game until you ask them a question. Then it’s time to pull out the card and start running down the “right-to” list.

Custody And Interrogation

Let’s look at how custody and interrogation work together. Example One comes from a domestic. Wife is nice and bloody, but won’t tell the responding officer how she got that way. Husband has a BAC roughly equal to the caliber of your duty weapon, and shouts: “G.. d... right I hit her, and I’ll do it again!” Interrogation? Sure, but he wasn’t in custody yet, so no Miranda was required.

If he’ll talk, and if officer safety allows, it can pay off to interview the suspect, and to delay arresting them until you’ve finished your investigation. Even if they lie, you’ve locked them into a story, and if they “testi–lie” at trial, they’ve got to explain away their other story first.

The next case was a marijuana DUI, where the Officer made the stop because a passenger was sitting in the open window as the car zinged past his cruiser. The driver smelled like pot, admitted smoking dope and topped out field sobriety. On the way to the jail, she speaks up: “Can I ask you a question?”

“Sure,” the officer replies.

“Could you tell I was stoned when I got out of the car?” I laughed out loud when I read that report. There’s custody, but no questioning; no Miranda required.

The “doh!” example involves a guy who got coked-up, stole an SUV from his homosexual lover’s father and wrecked it in spectacular fashion. The next day at the jail, the guy confessed all to his probation officer, who had neglected to Mirandize him before questioning him. In custody? Check. Interrogation? Check. The judge kicked the entire confession, and we lost the car theft, which he’d admitted to.

Once a suspect invokes his rights, you must stop the questioning immediately, and even if he doesn’t, a confession still can’t be coerced. This gets pretty technical, so if there’s a specific interrogation technique you might want to use, clear it with your DA. As a rule, if you don’t feel right about something, a judge is really gonna hate it.

Who Needs Evidence?

The baseline rule of evidence is, collect it. I’m always amazed at the evidence cops see and still don’t collect — like the felon in possession of a firearm case where the officers didn’t take the gun. The defendant’s family brought it to my office later, with lead poured down the barrel. For all I know, it was working and loaded at the time of arrest, but no jury was going to convict on that.

Jurors like things they can hold, like bongs and pipes, and the more tangible a case is, the stronger it is. This also cut off some defenses at the knees — like the guy claiming he used his pot for training drug dogs. “What,” the officer asked me, “they smoke it through those two pipes we took off him?” Put those pipes in the juror’s hands as State’s Exhibits, and that defense disappears.

When you collect evidence, protect it from contamination. As I walked up on one murder scene, giving the bloodstains a wide berth, I noticed an unmarked reddish-brown stain, and called the lead investigator over. “You missed one,” I told him, pointing. He crouched down, rubbing a finger in the damp spot.

“That ain’t blood,” he said, looking up. “It’s tobacco juice. (Officer’s name withheld)’s been on the scene.” Start counting the mistakes. Processing a crime scene is becoming rocket science, but securing one isn’t. If you don’t know how to process a scene, shut it down and call someone who can. Personal pride or inter-agency squabbles aren’t worth letting some maggot off.

Some jurors simply mistrust law enforcement, and your testimony alone will never be enough to make them convict; it takes physical evidence. If you have a camera, or a video camera, use it. If you don’t, get one, even if you spend your own money. It’s that important — remember, juries are conditioned by CSI to expect that stuff.

Identify Witnesses

Physical evidence can’t tell the whole story; you still need to have witnesses. So identify and interview everyone at a scene. It doesn’t have to be a worldclass interrogation: just, “You got a license on you?” followed up by “What’d you see?” If they saw something, have them write out a statement, and review it. Make sure their statement is reasonably complete; as a cop, you know what elements it takes to prove a crime, so make sure they cover each element to the best of their knowledge. One statement I got had only a name and “I saw what happend.” No, really, that was it. That’s how it was spelled, too.

A good written statement can make the case. It keeps a witness from forgetting what they saw by the time you go to trial, and also slows down a defendant who tries to intimidate them into changing their story.

Even if they didn’t see anything, ID everyone. Every unidentified person gives the defense extra ammunition. Like the battery case where the defense’s key witness was living in a trailer in the defendant’s back yard, and told a fantastic tale at trial about how he hid in the house, watching the victims attack the defendant. If he’d been ID’d and interviewed on the scene, that particular lie would have been impossible to tell, but he wasn’t and he had a year-and-a-half to make up something to help out his landlord.

Wow That Was Dumb

Some defense lawyers honestly believe the BS witnesses they put up, some don’t; the net result is the same. Shut that door on the scene.

And now the painful one: do not do anything stupid. “Stupid” means anything you would be ashamed of later on. The Bible says what’s whispered in darkness will be shouted from the housetops. Welcome to litigation.

On my first ride-along with a local department, the deputy made a DUI stop on a female. The driver admitted drinking, showed him an open container, and he got great field sobriety. Excellent stop, to this point. Then he left the suspect leaning on the front of his cruiser while he came to the rear to discuss the case with his sergeant and me. We offered our advice, which was something like “Cuff ‘em and stuff ‘em,” and the arresting officer nodded, spat and proceeded to urinate in the road right behind his car.

The best-case scenario is he’s embarrassed in front of six jurors, and he’s forever tarnished law enforcement in their eyes. Worst case, he’s sued for sexual harassment.

How about the officer who took a call on his cell phone while he was cuffing someone? I don’t know how the conversation started, but I know how it ended: “Hey honey, look, I gotta go, he’s running away …” Think about what that says to a jury. And while you’re thinking, think officer safety — all that bad guy wanted to do was run away. And that’s probably the least serious example that’s come through our office.

Every prosecutor understands we have months to deal with a case, and you’ve got minutes, hours at best. It’s unfair, but it’s the nature of the beast. Ultimately, we want you to come home at the end of every shift, and for your suspect to go to jail and stay there. Problems can always come up — changing laws, stupid decisions by the DA, weasel defense attorneys — but no one can make your case any better than you do when you respond to a call. So be thorough, and be careful.

Special thanks to Investigators Mark Cecci and Kim Thomas, UCSO, and Gary Wayne, Mountain Country.