Administrative & Criminal Proceedings Michael Ferjak

Administrative & Criminal Proceedings Testimony & Demeanor Role of the Prosecutor or State’s Attorney Role of the Defense Attorney Role of the Investigator Preparing to Testify After the Trial or Hearing

Testifying When an investigator testifies they: are subjected to close personal scrutiny are evaluated on past as well as current performance are constantly under close watch of the judge, jury or hearing entity are instantly judged on their reaction and response to questions and behaviors

Confidence Confidence: does not mean “cocky”, glib or flip, stiff, disrespectful or guessing Confidence means completely prepared, no doubt about the accuracy of your information and professionalism

Professionalism Integrity Skill Preparation Perseverance Personal Conduct All of these attributes will become clearly evident or clearly lacking when you take the stand to testify.

Role of the Prosecutor or State’s Attorney Attorney who represents the State. They: prosecute the defendant or respondent taking care not to infringe on their rights present evidence and testimony to support the state’s case advocate for the Public’s rights and expectations towards the accused individual

Role of the Prosecutor or State’s Attorney The Prosecutor or State’s Attorney also decides how a case is prosecuted. They: decide if the matter can or should be heard in an administrative or criminal setting decide if it is more effective to dispose of the case with a plea or negotiated settlement decide if the case is suitable for trial or the facts do not support prosecution

Role of the Prosecutor or State’s Attorney The Prosecutor or State’s Attorney also decides the strategy in how a case is prosecuted. As the Investigator you must be sure the prosecutor fully understands your report you understand the prosecutor’s trial strategy and how they intend to use your testimony Hint: Don’t wait until the trial date to talk to the prosecutor or state’s attorney.

Role of the Defense or Respondent’s Attorney This Attorney may be appointed by the court or privately retained. They: Protect the legal rights of the accused Ensure all submitted evidence meets legal requirements and is relevant Test the state’s case for weakness and, if found, exploit them to the client’s advantage

Role of the Defense or Respondent’s Attorney This Attorney is obligated to mount a vigorous defense of the client. They may: Aggressively challenge the state’s right to prosecute Argue the hearing entity has no jurisdiction Engage in spirited examination of the state’s evidence and witnesses

Role of the Defense or Respondent’s Attorney This Attorney will employ a variety of trial tactics to: present a sympathetic image of the client present an oppressive or unreasonable image of the state cause witnesses to respond in a desired manner

Role of the Investigator As the Investigator you have only one responsibility: Answer all questions honestly and to the best of your ability. The value of your testimony is affected most by the completeness of your original investigation

Preparing to Testify (Bull Fighting 101)

Preparing to Testify Case Review: There is no excuse to go on the stand without a detailed knowledge of the case facts- your value as a witness counts on it. You must: know the elements of the violation and how your information fits into the state’s case know how the state intends to show proof the violation or crime actually took place

Preparing to Testify Evidence: If you collected physical evidence you must be able to fully account for its security and control at all times (chain of custody) You may be used as a means of authenticating evidence, make sure you understand this process. Authentication was discussed on the first day of this program.

Authenticating Evidence A Short Review What does “authenticating” mean? To establish that something is what it is claimed to be. Examples of evidence requiring authentication Documents Business Records Correspondence Labels Physical Evidence Communications

Steps of Authentication 1. Identify the evidence 2. Provide proof of source (where it came from ) 3. Custody of the evidence 4. Description of Condition on discovery 5. Proper receipt or list

Appearance Dress: Do not dress to impress- be generally conservative in style and color selection, normal “business” attire Avoid excessive amounts of jewelry or “flashy” items Avoid excessive make up and perfume or cologne Hair should be worn in a neat, professional conservative style

At the Hearing Arrive early to determine if any last minute events have occurred Mentally prepare yourself- but don’t psych yourself out. Get perspective and remember you’re a professional Don’t over-socialize with the prosecutor or other witnesses Maintain a professional demeanor

Testifying Demeanor: This is how you appear to the judge, jury or hearing entity Be confident- don’t be “smart” but don’t be timid either Be professional, business like Be sincere- remember you care or you wouldn’t be there Be calm- if you’ve prepared, there won’t be a problem

Testifying Speaking: Speak at a normal rate, in a conversational tone loud enough to be heard by all parties- don’t yell Speak to the parties with respect and civility- lose any attitude you may harbor Establish and maintain eye contact with the judge, jury, attorneys etc. When responding- speak to the person asking the question. If asked to explain something to the jury or judge- look at them and answer

Testifying DO NOT GUESS- EVER If you make a mistake correct it immediately no matter how minor it may seem at the time. Remember- Facts, not your opinion (unless you’re an expert witness), are why you are there- stay objective and focused. If you are challenged or an objection is raised while testifying, stop and wait for the judge to instruct you whether to continue

Testifying Notes while Testifying: Check your agency’s policy on use of notes and follow it If you use notes on the stand they can be examined by the defense make sure: they are timely- notes written after the fact are subject to questions of your ability to recall facts/events they are part of your routine practice they contain only your personal observations and knowledge your notebook is kept intact and free of unprofessional entries

The “Bull” otherwise known as the Defense Attorney Methods of Approach: Sneak Attack- Friendly, engaging comfortable personality until you feel like they aren’t too bad (even for an attorney) Then BAM! They gore you. Head On “Horns Down” Lunge- Aggressive, possibly hostile using everything they can to anger,confuse or unsettle you.

The “Bull Fighter” otherwise known as the Witness (YOU) Ways to beat the Bull: Maintain your objectivity in testifying- do not let your personal beliefs influence the way you testify State only what you know to be accurate information- if you don’t know say so Do not offer opinions and confine your response to the questions asked

The “Bull Fighter” otherwise known as the Witness (YOU) Always stay calm- don’t let the “Bull” excite, panic or anger you Always stay alert for a change in tactics by the “Bull”reacting accordingly (which is to not react at all- simply remain professional) Always keep in mind what the “Bull” is trying to do! Never let it get to a personal level with you.

After the Hearing or Trial Maintain your professional demeanor (no high fives or plotting revenge in the hallway) Think about how your testimony went and learn from it to be even better the next time

Summary No matter how the defense attorney approaches stay calm, alert and remember what they are trying to do If you don’t know- say so it will not make you look incompetent Your role as an Investigator is to tell the truth objectively and impartially Your appearance and demeanor will influence everyone at the hearing- positively or negatively The value of your testimony is affected most by the completeness of your original investigation If you are challenged or an objection is raised while testifying, stop and wait for the judge to instruct you whether to continue

THANK YOU!