By David Daggett
In order to adequately and effectively carry out highway safety initiatives, a good working relationship between law enforcement liaisons (LELs), police and prosecutors (both TSRPs and local prosecutors) is paramount. While we are all members of the same team, we are not always on the same page when it comes to carrying out those initiatives. The purpose of this article is to try and help bridge that gap and enable all members of the law enforcement team to work together and improve overall highway safety.
Local LELs help promote national and state priorities through states’ highway safety programs and encourage law enforcement agencies and their officers to support the enforcement of traffic safety laws, especially those dealing with impaired, aggressive and distracted driving; occupant protection; speed management and other areas of traffic concern.
LELs are responsible for recruiting, encouraging and coordinating law enforcement participation in and reporting on events such as sobriety checkpoints, speed and seat belt enforcement, pedestrian safety, overseeing the collection of data related to the effectiveness of such events and providing guidance on effective traffic safety enforcement strategies. Additional duties include distributing materials, coordinating training events, conferences and inter-agency enforcement activities, and working with statewide transportation safety resource prosecutors in carrying out their duties. If it’s related to promoting traffic safety, chances are the LEL will be involved.
One of the chief ways an LEL can assist police and prosecutors is in helping to promote inter-agency cooperation. It is imperative to cultivate good working relationships with all involved parties. As such, LELs should familiarize themselves with a variety of subjects:
The players. It always helps to have solid working relationships with others in the field. While police and prosecutors in most jurisdictions are usually somewhat familiar with one another, untimely transfers, promotions and change in duties affect that dynamic. In many jurisdictions, the statewide TSRPs also have an excellent working relationship with the local prosecutors that handle the bulk of traffic cases. If the LEL hears of a difficulty regarding a certain issue or prosecutor’s office, putting that officer in touch with the TSRP to help act as a “go-between” can produce beneficial results. More often than not it is merely a simple misunderstanding that can easily be rectified via an e-mail or phone call. Other times, the LEL and TSRP can help facilitate a meeting between the officer and prosecutor, or, as the case may be, between a particular agency and prosecutor’s office.
Who handles the cases. In many jurisdictions, local prosecutors don’t usually handle “minor” traffic offenses such as speeding, negligent driving, red light, stop sign or seat belt violations, unless they are factually connected to “jail-able” offenses, such as DUI, fleeing and eluding, hit and run or driving revoked/suspended. Therefore, many prosecutors just aren’t as concerned with those types of traffic safety violations as they are with the more “serious” traffic offenses. In some locales, prosecutors may not even handle those minor traffic citations that result in death or serious physical injury to others if there is not the possibility of incarceration. This can be extremely difficult on law enforcement and frustrating to the victim and/or their family members. In those jurisdictions where this practice might take place, the LEL and TSRP should try and meet with the local prosecutor’s office to promote the importance of prosecutors being specially assigned to handle these type of cases. Ask their assistance in handling cases involving drivers passing stopped school buses as well, which are serious (and potentially tragic) offenses.
Traffic safety committees. Law enforcement officers, LELs and TSRPs should take every opportunity to stress to prosecutors the fine line between relatively minor traffic offenses and those that result in serious traffic accidents, serious injuries and deaths. Invite those local prosecutors who take a special interest in impaired driving enforcement/highway safety issues to regional traffic safety meetings or invite them to serve on committees or attend conferences where the focus is on improving highway safety.
Sobriety checkpoints and seat belt enforcement. The first time a young prosecutor handles a DUI sobriety checkpoint case can be a very nerve wracking experience, as is any new or unique case (first DRE case, fatal traffic case, blood kit, etc.,). Law enforcement agencies are encouraged to always notify the local prosecutors’ office when planning a sobriety checkpoint. Invite them to attend the roll call and checkpoint planning meeting as well as the checkpoint itself. As the officer-in-charge is typically required for trial, make sure to provide the contact information of the checkpoint supervisory staff. If the checkpoint is being held in a jurisdiction for the first time, inquire if the highway safety office has funds available to provide refreshments for the participants. Outfit the prosecutors with reflector vests. Encourage them to get up close and personal with the checkpoint, but do not allow them to become a witness in any resulting case.
Ride-alongs. Another excellent way to foster improved police-prosecutor relations is by encouraging prosecutors to participate in ride-alongs with law enforcement. This can help familiarize the prosecutor with the community; help answer officers’ legal questions; allow for the discussion of report writing and testimony and generally create a comfort level between police and prosecutors. The LEL and TSRP can help try and facilitate the ride-alongs by contacting supervisors and making appropriate pairings.
Proper case preparation and management. One of the chief complaints between police and prosecutors is a lack of communication between the two from both ends. Prosecutors greatly appreciate it when an officer reaches out to them with a particular concern, or to ask questions about a tricky case. They just don’t like it when the officer waits until the morning of court to bring it up. Try and get in touch at least a week in advance. While the prosecutor may not yet be familiar with the case, they can certainly get the file and go over it with the officer. This is particularly important in cases involving a life-threatening injury or fatality or if it involves a DRE or some sort of crash reconstruction or other expert witness. Unfortunately, for one reason or another, prosecutors don’t always realize that a DUI case resulted in a serious physical injury to another.
Prosecutors should always take the time to explain to the officer why a particular case is going to be dismissed or why certain charges were reduced. A good one-on-one discussion will help clear up any misunderstandings and create better cases in the future.
Top 10 List of Prosecutor Concerns with Law Enforcement
The ultimate goal in improving police-prosecutor relations is to increase the overall strength of cases, both now and in the future. A complete and thorough investigation, comprehensive report writing and solid courtroom testimony are the bedrock of any good case. The stronger the case, the better the chance of obtaining a conviction, either via plea or trial. In light of David Letterman’s recent retirement (and after speaking with my colleagues over the past 25 years) I have cobbled together a “Top 10” list of prosecutor concerns with law enforcement. Please keep in mind that these are all centered on fostering improved working relations and stronger cases.
# 10. Showing up for court and immediately telling the prosecutor that you: just got off the midnight shift…asking if they get you out of court early…telling the prosecutor (or worse yet, the defense attorney) that you don’t care what they do with the case…and then complaining about the result afterwards with fellow officers.
# 9. Not being able to fully and adequately explain the Horizontal Gaze Nystagmus test: What is it…What can cause it and what won’t cause it…ask the defendant questions eliminating reasonable non-drug related causes (head injuries, diseases, cataracts, MS, stroke, etc.)…HGN vs. VGN – What is the difference… There are judges and jurors who do not rely on the HGN, mainly because it can be somewhat complicated and confusing and they have no idea what is being said to them (particularly juries). What can you do to help simplify it and better explain it to the finder of fact?
# 8. Not being prepared when you come to court: Not being familiar with the facts of your case…not reviewing your report prior to being called to the stand…not having your report with you…not having the required evidence. We’ve all seen it, an officer sitting around in a courtroom all morning waiting for his trial to be called. The first question from the prosecutor is, “Were you on duty on June 1, 2015” and the officer responds, “May I refer to my notes?”
# 7. Treating any party to the case improperly: Failing to show proper respect to all parties, both on the street and in court…evidence that the officer used abusive or obscene language or unnecessary force…while testifying, being polite and cooperative with the prosecutor but rude and abrupt with the defense attorney. It really matters how you treat everyone, all the time, everywhere, even when writing speeding tickets. These people (and their friends and family) might someday serve on a jury and we want them on our side. In this day of cell phones, dash cams and body cameras, a police officer’s actions are under constant scrutiny. Let’s not give the defense anything with which to shift the focus of the trial.
# 6. Poorly written and/or late reports and being late in submitting discoverable evidence: Failing to get reports written in a complete and timely manner…not delivering required documents, photos, test results and other evidence to the prosecutor sufficiently in advance of trial to comply with discovery requirements…not having an updated Curriculum Vitae (CV) and providing that to the prosecutor prior to the court date. This is especially important when the officer is an expert in a particular field (Collision Reconstruction, Drug Recognition Examiner). If you are testifying as an expert, the prosecution is required to prove your expertise in court. An up-to-date copy of your CV will help you breeze through your qualifications and make it easier to get you qualified as an expert.
# 5. Courtroom testimony: Don’t speak in technical jargon (“cop speak”)…stay away from testifying to legal conclusions and stick to descriptive facts. It is those descriptive facts that will allow the prosecutor to argue the law…speak in language that the jury (and the judge) can understand…speak slowly and clearly…look the judge and jury directly in the eye, if possible…don’t become defensive, cop an attitude or argue with the defense attorney…admit your mistakes – we all make them, or at least most of us do…do your best to make sure the jury likes you (the officer) more than they like the defense attorney…and definitely more than they like the defendant!
# 4. Not arranging to meet with the prosecutor prior to the court date: To go over the file, review evidence and discuss the case…to point out strengths and weaknesses and ask for advice…to review predicate questions. Certainly the officer and prosecutor cannot do this in every case, but can certainly do so in serious, complicated, important and difficult cases. This is by no means a one-way street. It is certainly incumbent upon the prosecutor to contact the officer well in advance of the trial date to prep for those non-run-of-the-mill trials.
# 3. Be familiar with all statements made by the defendant and any evidence seized from the defendant and/or his vehicle: What, if any, statements did the defendant make to the arresting officer about the use of alcohol or drugs…was any drug related evidence recovered from the vehicle or from the defendant…document all statements made by the defendant to the investigating officer…once the defendant is in custody, don’t forget to advise of Miranda rights…ask as many questions as possible of the defendant regarding evidence discovered during the search of the vehicle and document his answers.
# 2. Failing to check messages and return phone calls: Oftentimes the prosecutor will attempt to contact the officer prior to trial in order to try and verify some mitigating or evidentiary information provided by the defense attorney or to ask a stop, search or seizure question regarding the case. The strength and weaknesses of plea offers can revolve around information that the officer might be aware of that is not documented in a report. If you see a message from the prosecutor, please make every attempt to get back to them. Again, this is a two-way street.
#1 Failure to appear for court: No call…no show…last minute unavailability, even though the officer has known about his scheduled leave or training for a long time…calling the morning of court and asking if you can be put “on call.” Without the assistance of a victim-witness coordinator or police-court liaison, the prosecutor has very limited ability to call witnesses during a court session. Try and contact the prosecutor a day or two in advance of court, leave a good contact number and try and coordinate with another member of your department or police-court liaison officer to contact you after clearing it with the prosecutor.
When you get right down to it, these all boil down to preparation, communication and time/case management. Law Enforcement Liaisons, TSRPs and law enforcement officers should try and make the time to reach out to your prosecutors. They will appreciate it. You will be better prepared for trial. And the overall strength of your cases will be improved!
David Daggett is a TSRP with the Maryland State’s Attorneys’ Association and the Maryland Highway Safety Office.