Courtroom Testimony from a Judge’s Perspective

Brent A. Carr Judge

Courtroom Testimonyfrom a

Judge’s PerspectiveJudge Brent A. Carr

IPTM Symposium on Traffic SafetyJune 4, 2019

Learning Objectives

1. The basics of jury selection

2. The role of a witness

3. The police officer as a witness

About Me

• Father was a career United States Marine• Mother an elementary school librarian • I lived in Ruskin, Florida from 1960 to 1976

• Manatee Jr. College, AA 1973• University of Tampa, BA – Psychology 1975

• United States Marine from 1976 – 1980 active duty• Active reserve 1984 – 1987• Honorable discharge – Major 1989

• South Texas College of Law 1980 – 1983, Juris Doctor

About Me• Tarrant County District Attorney 1983 – 1991

• Chief Felony Prosecutor – Courts• Chief Felony Prosecutor – Narcotics Task Force

• Judge Tarrant County Criminal Court 9, 1991 – present (28 years)• Presiding Local Administrative Judge• Over 1,000 jury trials• Over 70,000 case dispositions• Mental Health Court 2003• Veterans Court 2010• Human Sex-trafficking Court 2011

• Adjunct Professor Criminal Justice, Tarrant County College, 2000-present

Where I Work

Where I Work

Tarrant County• Over 2 Million People

• Third largest county in Texas

• Y’all come and see us sometime

We Are Proud of Our Heritage

Texas Rangers and Dallas Cowboys

Ground Rules• I have never been a peace officer

• I would never ask an officer to compromise personal or public safety

• My world is not your world

• You are probably not going to agree with everything I say

• Some insight into my world will hopefully create better understanding

Ground Rules

• I am on the side of justice, just like you I have to make tough decisions.

• The focus of this presentation is on lower level offenses.

• Any copyrighted materials used in this presentation are used in accordance with “fair use” principles, solely for classroom, face-to-face, educational, instructional and non-commercial purposes.

• Law enforcement (and judging) is serious business, but its ok to laugh sometimes.

Setting the Table

Setting the TableDoes the Process Favor the Defendant?

• Detention – Reasonable Suspicion• Frisk for Officer Safety – Reasonable

Suspicion • Arrest – Probable Cause • Search & Seizure – Probable Cause• Initial Magistration – Probable Cause,

Attorney Appointment, Personal Recognizance Release

• Right to Remain Silent - Miranda• Right to an Attorney• Attorney Client Privilege

• Examining Trial – Probable Cause, Evidentiary Hearing

• Indictment – Probable Cause• Discovery – Brady Material & General• Suppression of Evidence• Presumption of innocence• Cross - examination• Defendant Need Only Raise a Doubt• State’s Burden: Beyond a Reasonable

doubt

Setting the Table Does the Process Favor the Defendant?

Conviction RatesFederal: 93%State: 75%

Convictions From Plea BargainsFederal: 97%State: 94%https://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html

How Many Cases Go to Trial?3 – 6%

Setting the TableDoes the Process Favor the Defendant?

Fiscal Year 2010Charged Guilty Pl Jury Glty Jury N Glty

FederalNational 98,311 87,418 2,066 286

N. DistrictTexas 1,023 925 34 5

Dallas County (F) 24,772 20,862 344 48https://www.dallasnews.com/news/news/2012/01/29/not-guilty-remains-a-rarity-in-federal-and-state-courts

Setting the TablePolice Officers, A Cut Above

To become a police officer one is thoroughly vetted

• Extensive application• Sometimes college degree required• Background check• Tested academically• Polygraph• Drug tested• Driving record

• Mentally fit• Physically fit• Police academy• Field training• Periodic performance review• Public and media scrutiny

• We always like a scandal

Part OneThe Jury Trial

Part OneThe Requirement of a Jury Trial

1. The Sixth Amendment to the Constitution:

“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury….”

2. Duncan v. Louisiana (1968), Baldwin v. New York (1970)

Incorporated via the Fourteenth Amendment as a right states must observe in any prosecution where possible punishment exceeds six months

The Requirement of a Jury Trial

3. Size of the Jury

• 1967 Florida passes law that mandates six person juries for all criminal cases

• Williams v. Florida (1970): six person juries constitutional(12 in capital case mandatory)

• Texas: misdemeanor – 6, felony – 12

Jury SelectionWhere do Florida Jurors Come From?

Florida jury panels are randomly selected from the following sources:

• Licensed drivers

• Identification card holders

• Affidavit applicants

Jury SelectionEligibility Requirements

• At least 18 years of age

• Citizens of the United States

• Legal resident of Florida and respective county

Jury SelectionJuror Disqualification

• Convicted Felon (unless rights restored)

• Presently being prosecuted for a criminal offense

• Not a resident of the county where the trial is held

• Not a United States Citizen

Jury Selection: Who Shows Up?

Jury Selection: Who Shows Up?The Record Live

Orange County takes issue with missed jury duty (2012)Judge Buddie Hahn:“We sent out 1,000 jury notices last jury session and there were 800 no-shows,” Hahn said. “We had a 20 percent appearance rate. It kept dwindling down. Other counties are experiencing the same thing.”https://therecordlive.com/2012/03/27/orange-county-takes-issue-with-missed-jury-duty/

The Houston ChronicleOnly a third of those summoned for jury duty show uphttps://www.houstonchronicle.com/news/politics/houston/article/Only-a-third-of-those-summoned-for-jury-duty-show-5036084.php

Jury Selection: Why Don’t They Show UP?

• Ignore jury summons• Jury summons returned undeliverable• Not compensated for missed work time• No transportation• No childcare• Illness*• Last minute crisis*

* Note, once registered these often will notify the court of impending absence.

Jury Selection, Judicial Voir Dire Presumption of Innocence

Jury Selection Judicial Voir Dire Proof Beyond a Reasonable Doubt

Jury Selection, Judicial Voir Dire The Right to Remain Silent

Jury SelectionProsecution and Defense

Prosecution• Elements of offense• What the prosecution is not required to prove• Police officers as witnesses• Theories of intoxication

Defense• Reasonable doubt / State’s burden of proof• Bias against defendant• Bias in favor of police witnesses

Jury SelectionChallenges for Cause

Challenges for cause are based on an inability to follow the requirements of the two part jury oath.

1. Follow the law as instructed by the court

2. Limit factual basis of verdict to facts of case along with reasonable inferences

Jury SelectionChallenges for Cause

The Sixth Amendment:“In all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury….”

Bias and Prejudice towards / against police

Anything less than a commitment to neutrality on this issue is a reason to excuse for cause

Unlimited number of challenges for cause. Usually 0 to 3 in a misdemeanor

Jury SelectionPeremptory or Discretionary Challenge

Under Florida law, each side in a non-capital criminal jury trial has three discretionary challenges.

These may be used against a prospective juror for any private reason that is not prohibited by the Constitution. Racial or gender bias are prohibited reasons.

Positive or negative experiences with the criminal justice system or law enforcement, is a frequent basis for challenge.

Scale questions

Jury SelectionMy Experience / My Impressions

• Racial and gender bias – message generally received.• Overwhelming number of jurors are employed.• Online jury panels slightly more educated and more professional

positions.• Most panelists and jurors want to do their duty.• Jury panels have an identity.• Dominant personalities are more often jury foreperson.• Police officers, attorneys and judges rarely serve on juries. They do

sometimes.

Function of the Jury

The Jury is the Exclusive Judge of:

1. The Facts

2. The Credibility of any Witness

3. The Weight to be Given to any Evidence Introduced

Part TwoThe Role of the Witness

The Role of the Witness:Evidence is Like a Jar of Marbles

The Role of a Witness:Rules of Evidence

Florida Statutes, Sec. 90.601 et. seq.

• All persons competent to testify unless legally excluded (601)

• Lay witness must have personal knowledge (604)

• Witness impeachment introducing the following types of evidence (608):1. Prior inconsistent statements2. Bias3. Prior convictions for crimes that are serious or indicate untrustworthiness

The Role of a Witness:Rules of Evidence

• Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters. (612).

• Witness may use writing to refresh memory during testimony (613). • Adverse party may examine• Cross examine• Admit into evidence

The Role of a Witness:Rules of Evidence

The witness rule (616).All witnesses, except testifying witness, excluded from court room.

May not discuss testimony with others, except attorneys or investigators, while trial in progress.

Others includes other police officers.

Discussions with attorneys or investigators must be out of the presence of other witnesses.

> You may have to remind the attorneys.

The Role of a Witness:Rules of Evidence

• Lay witnesses testify about what they perceived through the five senses. They may give opinions and make inferences when special knowledge, skill, experience, or training, is not required (701).

> In traffic and DUI enforcement, significant amounts of officer testimony will be considered lay or non-expert testimony

> This may include intoxication, speed, distance, weaving, erratic driving, etc.

The Role of a Witness:Rules of Evidence

The Role of a Witness:Rules of Evidence

Expert Testimony (702)

• Experts testimony is allowed if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue.

• A person may qualify as an expert by knowledge, skill, experience, training, or education.

• Experts always testify in the form of opinions.

The Role of a Witness:Rules of Evidence

The Role of a Witness:Rules of EvidenceUseful Hearsay Exceptions

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (Presence of declarant immaterial)• SPONTANEOUS STATEMENT• EXCITED UTTERANCE• THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION• STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT

Part ThreeThe Police Officer as a Witness: Professionalism

The Police Officer as a Witness: ProfessionalismFBI Law Enforcement Bulletin

Characteristics of an Ideal Police Officerhttps://leb.fbi.gov/articles/perspective/perspective-characteristics-of-an-ideal-police-officer

• Initiative

• Respect for the law

• Knowledge of the law

• Communication skills

• Common sense

• Civility

• Service mentality

• Humility

• Controlled temper

• Thirst for knowledge

The Police Officer as a Witness: Professionalism

In Short, you are supposed to be angelic

The Police Officer as a WitnessRules of Testimony

Reality CheckChance of going to trial 3 – 6%

The Police Officer as a WitnessRules of Testimony

Reality CheckYou have probably slept at least 180 times since incident occurred

The Police Officer as a WitnessRules of Testimony

Reality CheckYou have been involved in 100’s of other matters

The Police Officer as a WitnessRules of Testimony

Reality Check

• The EVIDENCE is the most critical factor in the outcome of a trial.

• Both sides will have gone over your report and digital evidence with a fine-toothed comb.

• You were probably notified of the trial setting a few days before trial.

The Police Officer as a WitnessRules of Testimony

Reality Check

• At DUI trials, more often than not, the most experienced attorney is the defense attorney.

• You are going to be asked some dumb questions by both sides.

• Your patience will be tested.

The Police Officer as a Witness

Rule 1: Look and Act Like a Professional

• First appearances and impressions are very important

• Cannot be erased

• Will color the rest of the testimonial presentation

• For the jurors, observing a police witness may be the most significant contact they have ever had with a police officer

The Police Officer as a WitnessRule 2: Be Prepared

• Know the facts

• Review report and other materials before trial

• The expectation is to testify from memory• Take report to stand• Don’t be afraid to refresh memory with report while testifying

• Never guess

• While reviewing materials look for mistakes you made

The Police Officer as a Witness

Rule 2: Be Prepared

• Know your credentials (SFST Certifications / refresher)

• Know policy, procedure and protocols (SFST administration)

• Know your training record

• Know your personnel file

The Police Officer as a WitnessRule 3: Just Answer the Question

• Listen to the question• Do not anticipate the question• Do not talk over the questioner

• Court reporters can attack:

The Police Officer as a WitnessRule 3: Just Answer the Question

• Answer the question asked

• If the answer is “yes” or “no,” then that is the answer

• “I do not know” or “I do not remember,” may be the correct answer(As much as it may hurt sometimes / the attorney knows)

• Do not volunteer information

The Police Officer as a WitnessRule 3: Just Answer the Question

Things that get witnesses into trouble

• Trying to control the testimony

• Appearance of personal conflict with the defense attorney

• Stay on the trail• Landmines are located on either side

• Follow the judge’s instructions

The Police Officer as a WitnessRule 3: Just Answer the Question

• Witnesses do not control the testimony• Witnesses do not get to say everything they want to say• Witnesses are somewhat at the mercy of the party calling them • Witnesses must stop their answer if there is an objection• Remember the marbles:

The Police Officer as a WitnessRule 4: Be Yourself

• Do you see yourself as a confrontational person?

• Don’t be cute

• Don’t be sarcastic

• Don’t be a know-it-all (if you don’t know it)

• Trials are not a place for jokes no matter how tempting

Avoid Confrontation

Don’t Be Cute

Don’t Be Sarcastic

Don’t Act Like a Know-it-all

Don’t Make Jokes

The Police Officer as a WitnessRule 5: Don’t Oversell Yourself

• You are the expert on your part of the case.

• You are the expert on what you did and why you did it.

• You may be an expert on things that require special training, education or experience, such as HGN.

• No one is an expert on everything.

• Expertise assumes objectivity and fact based conclusions.

The Police Officer as a Witness

Rule 5: Don’t Oversell Yourself

The Witness Stand is not the Place:

The Police Officer as a WitnessRule 6: Don’t Hide the Garbage

• Advise the attorney of problems or concerns with the case• We do not play “win at all cost.”

• It is unethical• It may be contemptuous• It may be illegal

• Freely admit mistakes, oversights or omissions• Nobody likes surprises• Sometimes the case stinks and can’t be saved

The Police Officer as a Witness

Rule 7: Keep Your Cool

• Don’t get provoked

• Don’t take it personally

• Opposing attorney’s job is to attack your: • Performance• Documentation• Conclusions

The Police Officer as a Witness

Famous Television Defense Attorneys

The Police Officer as a Witness

Rule 7: Keep Your Cool

• Never cuss in court unless directed to quote a suspect / witness

• Rule 2: being prepared will help you remain cool

• Don’t give the other side an opportunity to rattle your cage by:• Overselling yourself (Rule 5)• Assuming the opposing attorney does not have a clue• Volunteering information (Rule 3)

The Police Officer as a WitnessRule 7: Keep Your Cool

• Don’t be baited by the tone of opposing counsel’s voice.

• Keep your own voice and speech in calm and professional tones.

• The counsel who called you as a witness should object to badgering.

• The judge should control the courtroom.

• But above all else…….

The Police Officer as a WitnessRule 7: Keep Your Cool

The Police Officer as a WitnessRule 8: Don’t Let the Lawyers Control Your Testimony

• Lawyers do not always think like normal professionals

• In fact they don’t always act like normal people

• There is no nit that should not be picked

• There is no question that should not be asked no matter how small the point

The Police Officer as a WitnessRule 8: Don’t Let the Lawyers Control Your Testimony

• The facts are the facts.

• You do not control the questions from either side.

• You do control your level of preparation and your ability to stay between the lines of what you know.

• Remember, most of the time the government wins primarily because of the professional work of police officers.

• Simply follow rules one through seven.

TidbitsAt No Extra Charge

• Turn off the commercial radio during stops• When filming a suspect performing SFST’s, know where the dashcam

will pick up the entire person (you people are no Stephen Spielberg) • Use the dashcam mike with dashcam video• Do HGN correctly

• Hello: 4 – four – FOUR seconds out• Hello: 4 – four – FOUR seconds at max deviation• Do not combine steps of the test• I have suppressed results when clearly performed incorrectly

• Witness rule

TidbitsAt No Extra Charge

• Be aware your colleagues at the scene will be called upon to attack your testimony

• You are always being recorded; this is often a big problem• Avoid acronyms• Do not speak too fast• Pay attention to what you write in your report.

• If you remember a mistake the next day, supplement to avoid the “is your memory better today or when you wrote the report” trap.

• Be firm, not abusive

Thank You So Very Much

• I miss Florida

• I miss saltwater fishing

• I miss Cuban sandwiches

• I miss deviled crabs

QUESTIONS?

Judge Brent A. CarrTarrant County Criminal Court 9401 W. Belknap St. Fort Worth, Texas 76196-7678(817) 884-3410bacarr@tarrantcounty.com