Law enforcement witnesses for the Prosecution

Law enforcement witnesses

Frequently law enforcement witnesses are involved in observing the defendant's allegedly criminal behavior, his or her arrest, or a search and seizure. Often they will be called to testify because only circumstantial evidence is available and their testimony will help establish that there is an individual who is likely to have committed the crime and that they have identified that individual as the defendant. Where the issue of identity is crucial, however, a law enforcement representative may be used to elicit testimony that individuals other than the defendant may have committed the crime in question. It is also useful to ask law enforcement officers whether they considered other suspects. If they answer in the affirmative, counsel should ask who else was considered and how that individual was eliminated. If no other suspects were considered, the defense should challenge the reasoning process that jumped from circumstantial evidence to the defendant. Frequently, law enforcement representatives state that there were no suspects until they gathered information, from which, all inferences pointed to the defendant.

The law enforcement witness may also bolster other parts of the defense case. Counsel should attempt to elicit. from the law enforcement witness, that the defendant was cooperative, and the content of any self-serving admissions. In considering if counsel should elicit self-serving admissions, he or she must be aware that such an examination of the police enforcement witness will allow the prosecution to elicit contrary admissions, which were previously inadmissible.FN43

In examining the officer on the manner by which the alleged guilt of the defendant was discovered, counsel should stress the intrusive nature of the investigation, particularly if it appears to threaten the privacy rights of other workers.FN44

If the attitude of law enforcement, the victim, and the prosecution are authoritarian, it may be best to play up this aspect of the officer's personality by asking questions that exaggerate the authoritarian nature of the responses.

If the law enforcement officer is not an expert on computer crime, questions demonstrating his or her lack of expertise with computer crime may be asked.

It is important to carefully review all police reports written by each officer who will testifyFN45 and to assure, through discovery, that the defense counsel knows of every report that has been made, and has copies of all of those reports. If at the start of the case, the officer had a low level of sophistication on technical matters, it is quite possible that early reports will reflect this lack of sophistication, and thereby may be inaccurate. Impeachment from such police reports is a useful technique to raise the issue of reasonable doubt.