STRATEGIES IN PLAYING “COPS & PROSECUTORS”

By: Jared Olsen

Less than a week into my new position as a Traffic Safety Resource Prosecutor (TSRP) I was invited at the last minute to attend a multi-agency law enforcement meeting.  The agencies were trying to reach an understanding of how to work together in injury/fatality crashes. Glaringly absent from the meeting were local prosecutors. Upon introductions and an explanation of the role of a TSRP, the response I received was, “Fantastic, if you could just train our prosecutors on how to handle an impaired driving crash that would be great.”

Later in the week, I met with prosecutors representing these agencies. After introductions and another explanation of my role as a TSRP, the prosecutors said, “Fantastic, if you could just train our cops on how to investigate an impaired driving case that would be great.”

Upon discussing this with my colleagues in other states, I found that these responses are all too common. Successfully investigating and prosecuting impaired driving and other traffic crimes requires a team approach.  A good working relationship between cops and prosecutors lightens the workload and increases convictions. Having worked on both sides of the fence, as a law enforcement officer and as a prosecutor, I offer the following strategies in developing a multidisciplinary approach.

 Five Strategies for Prosecutors

Work with the Officer in the Field. An officer once approached me and asked that I ride along with him. “Until I have worked with you,” he said, “I don’t trust you.”  Working in the field with officers goes a long way in establishing credibility.  This is your chance to understand how your cases develop on the street before hitting your desk. Road patrol and/or task force shifts are excellent opportunities to ride along with officers. Go with a student mentality and learn as much as you can from that officer.  Don’t hesitate to ask questions and engage in conversation. By doing this, you will both learn something.

Be observant and see if you can find indicators of impairment or traffic violations before the officer does. Not likely, but you will make a good impression by showing interest in their work. Ask them to describe what they are observing to you. Discussing the elements now may ease the officer’s anxiety later when preparing for trial. Ride-alongs are also a non-threatening time to check the relationship temperature between your office and their department.

Invite Officers to be Your Shadow. Even though your desk is not as exciting as a police officer’s, you can still invite officers for a courthouse ride-along. After shadowing you for a day, officers will have a newfound respect for the caseloads and pressures you deal with as a prosecutor. Do not bring them in on a slow day. Just as you desire to see the real action on the streets, they need to see the real action in the courthouse. If a courthouse ride-along is impossible due to the officers’ shift work, then look for impromptu opportunities for them to watch you work. Many times they are subpoenaed only to wait outside the courtroom, on a bench, without ever taking the stand. Instead, let them experience your interactions with defense counsel, judges, victims and pro se defendants.

After an officer testifies, take a few moments to find out if they have any questions or concerns. Ask them, “How did this go for you?” “What can I do better?”  They will inevitably respond by asking you the same questions. Be ready to tell them specific things they did well. If there happens to be an area needing improvement, share it with them, but only after first explaining their strengths.

 Invite Officers to Observe a Jury Trial From Start to Finish. If the officer has never been a witness before, invite them to observe a hearing or trial before their event is scheduled.  This will give them an opportunity to watch a direct and cross examination, the judge’s rulings and interactions with lawyers and witnesses and even observe the layout of the courtroom itself. Find moments to explain what is happening and share the strategies being employed. Do not assume they understand the trial process. I was once surprised when a sergeant with 12 years experience told me this was his first jury trial.

True, most cases resolve long before trial.  This creates a misperception that prosecutors are not pushing hard enough.  Viewing an actual trial will reveal the procedural hoops and potential pitfalls that must be overcome for a judge or jury to convict. Upon recognizing this, officers will begin to collect their evidence with the judge and jury in mind.

Give Credit When Credit is Due. After your officer testifies at trial, take a moment to write a letter to their supervising officer.  Include in the letter a description of the case, the specific strengths in the investigation and how well the officer did on the witness stand.  These letters will be placed in the officer’s permanent file, and I guarantee they will be appreciated.  This simple act tends to foster a relationship wherein the officer will put forth extra effort into bringing you good cases.

Communicate When Reducing Charges. Make it a personal habit to notify officers before you reduce or dismiss an impaired driving charge as part of a plea agreement.  While you don’t need to ask permission to negotiate a plea, a simple e-mail explaining your actions will foster a great deal of goodwill. Impaired driving cases require a great deal of investigation time and lots of paperwork. Because of this, officers become invested in these cases, more so than many others.  Your e-mail may save your reputation as their prosecutor. Officers will also begin calling you when they recognize potential problems in their cases, which will save you time.

Five Strategies for Officers

Testifying in court was not something I envisioned when I chose to become a police officer.  Yet, within a month of being sworn in, I found myself in the witness box. I had met with the prosecutor beforehand and told him it was my first time testifying. “You will do fine,” he said. “This is just a routine preliminary hearing.”  It felt like I spent three years in the box, that afternoon, being grilled by a defense lawyer.  This was not the adrenaline rush I signed up for.  What was routine for the prosecutor was very much foreign to me. For my first time on the witness stand, I felt very much used, lied to and taken advantage of, despite the judge ruling in my favor. I was upset with the prosecutor for not having warned or prepared me for that dreadful experience.

Shadow Your Prosecutor for a Day. The key to avoiding the courtroom, or at least making it less traumatic, is developing a good working relationship with your prosecutor. As mentioned above, take time to shadow your prosecutor for a day.  Watching your prosecutor work will give great insight into how to investigate and develop your own cases with an eye for trial.  You will see the prosecutor negotiate with defense counsel, advocate cases in front of a judge and meet with victims. It will become crystal clear how much your prosecutor relies on well-written police reports.

Come Prepared with Questions. Whether it is a courtroom ride-along, or your turn to testify in court, come prepared with lots of questions.  Ask the prosecutor such things as: “Where do you think defense counsel will attack? What are the weak points in the case? The strengths? What could have been done better?” If you make this a habit, your prosecutor will likely develop a habit of having the answers before you arrive. Both of you will then be prepared for courtroom battle.

Invite Your Prosecutor to the Crime Scene. During your investigation, contact your prosecutor with any questions you may have.  Be cognizant of opportunities to invite prosecutors to the crime scene. Good prosecutors will roll out of bed at 3 a.m. to come to the scene of an alcohol-related crash.  They realize how much better they will present the case in court having seen it firsthand.  They will watch you work and translate it into better questions when you become the state’s witness.

Share Your Concerns. For various reasons, there are certain cases you become attached to and are concerned with the outcome.  When this happens, remember that your prosecutor is reviewing hundreds of cases from various officers.  Therefore, be sure to contact your prosecutor early in the process and give your input as to how you would like the case to be resolved.  Your input is important and usually will be given great consideration. It will certainly generate an explanation if the resolution is different from your expectations.

Give Credit When Credit is Due. Finally, when your prosecutor is doing a good job, take the time to approach their supervisor to express your approval.  This will eventually get back to that prosecutor and from then on your name will jump off your reports. Greater attention and special care will likely be given to your cases.  The end result is better investigation on your part and better prosecution on their part.

The invitation is to try at least one of these strategies. See if it works. Playing cops and prosecutors takes a coordinated effort to successfully reduce impaired driving and other traffic crimes.

Editor’s Note:  Jared Olsen is the Traffic Safety Resource Prosecutor for the Idaho Prosecuting Attorneys Association.