The current landscape of policing is presenting a lot of challenges for officers on the street. We learn in law enforcement that police can be taken to task by their agency, citizens, the courts, federal agencies, and prosecutors. Relationships with prosecutors can often be contentious and counterintuitive to what you would expect from someone who is on the same team. Having spent some time on the street and in the courtroom, it is my hope to help you bridge that gap and improve relations with your prosecutor. Here are six ways you can do so.
1. Collect All Relevant Evidence
A burglary case I worked on offered one of my greatest lessons. I was helping a young deputy through his FTO program when we got the early morning call. The suspect was caught after breaking into an occupied house. A short chase between the suspect and victim ensued which ended in a crash. I was called to the crash and approached the two men to ascertain what was going on. The burglar pointed to the other driver and said, “I was stealing from that man.” I got together with the trainee after making the arrest and detailed what we would do next.
We collected images of the stolen property in the suspect’s car. We photographed his size 14 shoe prints at the residence and matched them to his shoes (which were also placed in evidence). We got great statements and photographed the crime scene. I remember the deputy asking me why we were running so deep on a case with a confession. I explained that we could not hang our hat on one piece of evidence. Defense attorneys frontload their work and try to prevent some evidentiary items from being considered in court. Juries are unpredictable too. I have seen a jury acquit a man who had confessed to a sexual assault on a video recorded interview with a detective. Provide ample evidence if it is available.
2. Expect a Plea Bargain
Despite the “air tight” nature of the case the young deputy and I presented, the defendant accepted a plea bargain, did some community service, got time served, and was on to other felonious conduct in no time. I was frustrated with this at first. I later learned about the case load presented to prosecutors. I know officers on the street are busy, but imagine all your cases, and all the cases of all the other police agencies in your general area being funneled into one prosecutor’s office.
The sheer volume of cases presented to a prosecutor prevents them from taking every case to trial. If we tried that, the justice system would be backlogged for decades if not more. Consequently, the majority of cases end in plea bargains. Your hard work on the case up front enables a prosecutor to negotiate a plea with stronger consequences, or a stronger case in chief at trial should negotiations fail.
3. Probable Cause vs Beyond a Reasonable Doubt
I was on the street for 15 years and used probable cause on a daily basis. It is generally defined as evidence that would lead a reasonable person to believe a crime had been committed. We all know cops are not “reasonable,” yet we use this standard to make the arrests that often start our cases. Probable cause is often easy to obtain and arrest on, but officers should be mindful of the standard that is imposed in trial.
Beyond a reasonable doubt is a standard that is much harder to achieve. It is easy, and tempting at times, to arrest someone and resolve a matter for the night. Collect all relevant evidence, take all statements, and go the extra mile to make sure your case is solid.
4. “Yeah, I saw the whole thing!”
We live in amazing times where officers have cameras rolling during their actions. I reviewed a video for a stabbing case which happened in a busy city center. The officer on scene was wisely canvassing the crowd asking if anyone had seen anything. When he passed a young man who shouted, “Yeah, I saw the whole thing” he said okay and moved on to other business.
I have been there — I understand it is difficult at times to make that transition from securing the scene to active investigation. Keep in mind in that moment, on that scene, you have a chance to learn things, to collect evidence, that will have ramifications for people’s lives for years to come. You never get that moment back. If you do not take statements, at least get a name and contact information for the people that do. Depending on the size of your agency, you may have to follow up later, pass it on to detectives, or prosecutorial investigators.
5. Think Long-term
When you are standing in your scene trying to make sense of it, it is difficult to imagine that over a year later, you may finally be going to trial. A wise police commander once told me when assembling my cases, I should think like a prosecutor - better yet, a defense attorney!
I have reviewed many reports over the years and have found them lacking. I understand. I was there, after making that late night domestic arrest and winding through all the booking paperwork and affidavit, finally getting to my report.
We can be moved to taking shortcuts. How good is your memory after a year’s worth of work? Think about having to testify. Some of my most painful lessons came on the stand. I survived, learned, and improved as a result. I offer this cautionary tale: I have seen detectives testify for hours on end in preliminary hearings based upon their efforts in a case. It is better to be found prepared than to be found wanting. If no detective is coming to take over your case, plan to be on the stand a while and make a solid report that will refresh your memory a year or two down the road.
6. Open the Lines of Communication
I had a deputy get kicked in the groin during a violent warrant arrest once. The prosecutor assigned was going to roll the offense into a bad check case and extend the suspect’s probation. I called the prosecutor and explained that we, as officers, accept danger as a part of our jobs, but we do not accept violence as part and parcel to our duties. I told him I understood many cases needed plea deals, but that was one we expected them to fight for us on. He said no officer had ever explained the situation like that before and went on to get the five-year minimum.
Officers complain about poor outcomes in cases or never hearing final dispositions. Prosecutors complain about shoddy officer reports and lack of evidence or effort on the part of officers. Both parties are guilty of contributing to the problem unless solid lines of communication are established.
In one jurisdiction I worked, we created a non-discoverable (doesn’t go to the defense) form where we could communicate the outcomes we would like to see. When you had a drunken driver that was not getting the message after their fourth offense, you could write the prosecutor and ask them to apply some stronger consequences. Police reports are the main source of information prosecutors rely on, but they do not always tell the full story.
Many prosecutor’s offices have investigators assigned to them. These are typically former street cops that either failed at retirement, or just liked working banker’s hours while staying in law enforcement. Reach out to them. They know a great deal and often have access to information that can help you understand what happened to cases and how to improve outcomes. Don’t be surprised if that feedback includes more work on your end. Don’t view your prosecutors as “another line of supervision” when they offer you feedback. They will tell you what will help them successfully prosecute cases.
Conclusion
Over the years, I spent time cursing prosecutors and officers alike for what I had perceived to be their efforts. Cops and prosecutors share a passion for making society a better place, but the street is vastly different than the courtroom. It is easy to dismiss an agency based upon results when you do not understand the why. The why explains how they arrived at their conclusions and made the decisions they did. Take responsibility for your cases and ask your prosecutors to do the same. If you open up a dialogue with them, you will understand a great deal more. You may not like the outcomes, but you will understand them and can prepare better the next time around.
