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briefly discuss the investigator’s testimony in court

Per, Vecchi (2010), briefly discuss in your own words the investigator’s testimony in court. In doing so, list the actions that should be considered before testifying.

APA FORMAT, NO PLAIGIRISM, COLLEGE LEVEL, RESOURCE ATTACHED

Principles and Approaches to Criminal

Investigation, Part 4

By Gregory M. Vecchi, PhD, CFC, CHS-V, DABCIP, DABLEE

For the purposes of this series of articles, the term investigative processes will be used to de- scribe both criminal investigation and crime scene processing. Any distinctions between crim- inal investigation and crime scene processing will be designated as such. Although crime scene processing is part of criminal investigation, it is distinct; crime scene processing requires rigorous scientific methodologies (i.e., collection proce- dures, testing protocols, etc.), while criminal in- vestigation has less of a “hard science” character and relies more on the experience and skills of the investigator rather than rigid scientific pro- tocols and procedures. In this light, crime scene processing can be viewed as the “science” of in- vestigative processes, whereas criminal investi- gation can be viewed as the “art.” The format of this article series is to provide information on the entire spectrum of investigative processes that is useful for all individuals involved in investiga- tions: the responding officer, detectives/investi- gators, police supervisors, lawyers, judges, and other criminal justice professionals. This article examines special investigations such as white collar crime, drug trafficking, high-tech crime, and terrorism using the Enterprise Theory of Investigation; trial and testimony; and conflict and perspective.

Special Investigations Special investigations include white-collar crime, drug trafficking, organized crime, high tech- nology or cyber crime, cults, and terrorism (Criminology Today, 1995-2002a, 1995-2002b; Dyson, 2005). These crimes require special in- vestigative techniques, such as undercover op- erations and the use of the Enterprise Theory of Investigation. White-collar crime is often related to corporate crime, such as the Enron and WorldCom scandals; however, it is also as- sociated with health care, telemarketing, bank and securities, contract, and residential mov- ing. Organized crime is usually associated with centrally controlled organized criminal organi- zations, such as Italian, Italian-American, and Colombian criminal groups; however, lesser known decentralized criminal organizations are making inroads. For example, Russian and Israeli criminal groups are threatening to take control of rackets like drugs, money launder- ing, and many extortion-related schemes, which were once the exclusive realm of the centralized organized criminal groups.

The views expressed in

this article do not necessarily represent the

views of the FBI.

10 THE FORENSIC EXAMINER® Spring 2010 www.acfei.com

CASE STUDY

Drug trafficking still remains a very lucrative and corrupting influence in the United States (Criminology Today, 1995-2002a). Although there has been some success in curbing the influx of illegal drugs through enforcement and educa- tional programs, the amazing amount of wealth, resources, and cunning of drug traffickers is sometimes beyond the capability of the govern- ment to control. As a result, the government has begun to cut into the profits of the illegal drug trade through the aggressive application of assets forfeiture. For example, many law enforcement agencies assign officers to Drug Enforcement Administration (DEA) task forces for the pur- pose of obtaining forfeited assets and currency through drug investigations, which are used to supplement their operating budgets. High-technology crime affects significant as- sets and has the potential to be extremely costly and dangerous, especially with regards to infra- structural components such as air traffic con- trol, nuclear facilities, power grids, satellites, and banking systems (Criminology Today, 1995- 2002b). Over the past decade, computer hackers have become very sophisticated and many are being paid by other organized crime and terrorist groups to manipulate these assets for profit and control. Because these types of high-tech crime are fairly anonymous, they are very difficult and expensive to solve. Terrorism has eclipsed nearly all other in- vestigative priorities since the September 11, 2001, terrorist attacks in New York City and Washington, DC. These investigations are very complex, due in part to the secret nature of terror- ist activities, the fluidity of their operations, their ability to embed themselves among us, the lack of centralized control and stated national affilia- tions, their willingness to die for their “cause,” and their uncooperative nature when caught (Dyson, 2005).

Enterprise Theory of Investigation Special investigations such as drugs, organized crime, cyber-crime, and terrorism require a dif- ferent approach than more traditional crimes such as murder, robbery, and arson. Traditional investigations are focused on individuals, who, for the most part, are principally responsible for the crime (Criminology Today, 1995-2002a, 1995-2002b; Dyson, 2005). Once they are caught, prosecuted, and incarcerated, the crime stops. Shoplifting and assault are examples of

less complex individual-focused cases, whereas serial rapes and murders and the Washington, DC sniper case are examples of more complex individual-focused investigations. With special investigations, the focus needs to shift from be- ing solely on individuals to their collective “en- terprise” as a whole (the “enterprise” representing a specific racket—drugs, extortion, data acqui- sition or destruction, terrorism, etc.) because removing any one person will not stop further crimes from being committed by the remain- ing network. Therefore, the goal is to disrupt, dismantle, and incapacitate the entire network. Drug trafficking is the most common example of this, where continually arresting street dealers and raiding crack houses only result in someone else taking their places. Terrorism has similar characteristics with the additional disturbing trait of individuals lining up to die in service to their organizations’ ideologies and objectives. Most criminal organizations are in business to make money, whether it is accomplished through selling illegal drugs or stolen property, launder- ing other people’s money, extortion, or a myriad of other schemes. Even terrorist organizations are in the business of making money in order to fi- nance their ideological or political ambitions and objectives, as well as pocket some along the way (Dyson, 2005). The command and control of these organizations are efficient and resistant to traditional law enforcement techniques because they have learned to delegate the authority to multiple people and the highest leaders of the organization provide direction but rarely do any of the “dirty work.” Due to these characteristics, the Enterprise Theory of Investigation focuses on targeting the communication apparatus of the organization and following the money. In other words, the focus is on developing human intelligence and conducting covert operations in order to capture communications between members of the organization and identifying

Gregory M. Vecchi, PhD, CFC, CHS-V, DABCIP, DABLEE is the Unit Chief of the Behavioral Science Unit (BSU), Federal Bureau of Investigation (FBI). Dr. Vecchi conducts research, training, and consultation activities in behavior-based conflict analysis and resolution, crisis management, conflict and crisis communication, and global hostage-taking.

Spring 2010 THE FORENSIC EXAMINER® 11(800) 592-1399

and seizing its assets. As previously mentioned, the goal is to dis- rupt, dismantle, and incapacitate the entire crim- inal organization. Therefore, the investigator should penetrate the organization at the highest level possible and use techniques that identify and expose its leadership to prosecution and its assets to forfeiture. The investigator should also strive to move up and down all echelons of the organization in order to ensure maximization of prosecution and assets forfeiture. Prosecuting these types of criminal organi- zations require the use of conspiracy laws and special laws such as the Racketeer Influenced and Corrupt Organizations (RICO) Act, the Continuing Criminal Enterprise (CCE) Act, and the Patriot Act. These laws allow the prosecu- tion of individuals who are culpable in criminal behavior based only on their conversations with others who actually commit the crimes, which allows prosecution of those who only give the orders. For example, if Robert ordered Bill to murder Ted and Bill carried it out, both Robert and Bill could be charged with Ted’s murder. Without special laws like conspiracy, Robert could never be charged. The conduct of these investigations is al- most always covert in nature because the sus- pects know they are committing crimes and they try to avoid contact with law enforce- ment. As such, it is necessary to use covert and undercover techniques, as well as overt techniques (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). Covert techniques involve the gathering of criminal intelligence and evidence by using

special techniques such as pen registers and wiretaps. Undercover techniques involve col- lecting criminal intelligence through the use of undercover informants, agents and officers, consensual monitoring, and surveillance. Overt techniques are usually the last methods used for collecting criminal intelligence and evidence through the use of grand juries, interviews, in- terrogations, and search warrants. Special investigations concerning violations such as drugs, organized crime, cyber crime, and terrorism require the investigator to focus on the entire network of individuals who make up the organization, rather than focusing on individual criminal behavior (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). Through the use of conspiracy-based statutes and covert/undercov- er techniques, the investigator targets the com- munication apparatus of the organization and its assets in order to disrupt, dismantle, and ul- timately incapacitate the organization. This al- lows multiple prosecutions of the organization’s members as well as forfeiture of its assets.

Trial The investigator must be very cognizant of the importance of legal processes and con- siderations while conducting an investiga- tion if he or she expects the results to be ad- missible in court (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). Among some of the most ob- vious aspects of these legal processes and con- siderations are criminal law, constitutional law, and Miranda rights waivers; however, the importance of trial and courtroom testimony considerations is oftentimes overlooked. It is important to remember that winning at trial is often more about who presents the better argument than it is about fairness or justice. This may seem disappointing; however, it is a reality that the investigator must acknowledge and live with if he or she is to be effective in the courtroom. Before a trial begins, hearings will have oc- curred during which the defense will attempt to obtain rulings from the judge that will be favor- able to their side. Through discovery, the defense

“these investigations are very complex, due in part,

to the secret nature of ter- rorist activities, the flu- idity of their operations,

their ability to embed them- selves among us, the lack

of centralized control and stated national “Cause,” and their uncooperative

nature when caught.”

12 THE FORENSIC EXAMINER® Spring 2010 www.acfei.com

will have been given access to the evidence that the prosecution plans to present, which is often challenged as being unfair, especially with highly damaging evidence (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). Once the trial is set, it will usually be held in front of a jury in complex cases. A jury will be selected and both the prosecution and defense will have opportunities to challenge prospec- tive jurors. As the trial begins, the prosecutor will outline his or her case during opening ar- guments and the defense will outline his or her case, each one postulating the weaknesses of the other’s case. Following the opening arguments, the pros- ecutor will present his or her case, usually be- ginning with calling witnesses whom were ini- tially interviewed by investigators. It is also likely that the prosecutor will have crime labo- ratory experts testify concerning the physical evidence that was recovered by investigators. Additionally, other law enforcement officers will testify about information they developed during the case. The defense will then present its case, usu- ally challenging the physical and testimonial evidence presented by the prosecutor. Most of the challenges occur during cross-examination of the investigators where the defense will at- tempt to call into question the conduct of the investigation and the credibility of the investiga- tors. Technical issues concerning improper col- lection efforts, chain of custody, and method of analyses of the physical evidence are commonly raised. Questions concerning the accuracy of observations, interviews, affidavits, and rights waivers are examples of challenges to testimo- nial evidence. Following the presentation of evidence, both sides will deliver their closing arguments. The prosecution will summarize the evidence they pre- sented and explain how it proves the defendant’s guilt. Thereafter, the defense will review the evi- dence and argue how the evidence presented does not prove their client’s guilt. Ultimately, the jury will render a verdict of guilty, not guilty, or hung (meaning that they couldn’t come to a consensus on the defendant’s guilt or innocence).

Courtroom Testimony Ultimately, a critical factor in bringing a case to fruition is the investigator’s testimony in court. As a result, it is critical that the investigator thoroughly prepares before being called to the stand (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). When preparing for trial, the investigator should coordinate closely with the prosecutor to avoid surprises in court. This coordination involves spending enough time with the prosecutor to determine what questions will be asked by the prosecutor and what responses to expect from the investigator based on the evidence and facts of the investigation. In addition, the investigator should query the prosecutor on possible ques- tions and alternative interpretation of the facts of the investigation that may be brought up by the defense. The following actions should be considered before testifying (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007):

Review investigative actions and coordi-• nate with the prosecutor before attending the hearing. Review all statements for clarity.• Review all waivers, affidavits, and search war-• rants for investigative and legal sufficiency. Review times, dates, and places of primary • importance to the investigation. Review investigative notes and prepare • miscellaneous notes for use as quick refer- ence material. Avoid trying to memorize notes.• Coordinate with the evidence custodian • and physically review all evidence acquired during the investigation. Verify that the evidence is properly marked • for identification Review the chain of custody.• Coordinate with the prosecutor on specific • items of evidence required for court. Refresh memory by visiting the scene of • the crime.

During court, it is important for investigators to establish themselves as credible witnesses (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). To

Spring 2010 THE FORENSIC EXAMINER® 13(800) 592-1399

accomplish this, the investigator should present an appearance marked by clean- liness, neatness, and concern for the de- tails. Additionally, the investigator should refrain from distracting mannerisms or actions, such as shaking, fidgeting, or ex- cessive arm motions. Investigators should also avoid using police jargon or technical language, as it tends to confuse the jury. For example, instead of saying “I then ob- served the suspect exit the vehicle,” the in- vestigator could say, “I then saw Mr. Jones get out of his car.” If an objection is raised by either the pros- ecution or defense, the investigator should stop his or her testimony until the judge rules on the objection. In addition, the in- vestigator should never blurt out answers to a question that is asked by the defense un- til he or she is sure that the prosecution will not object. Likewise, the investigator should never volunteer any information while testi- fying that was not called for in a question. If the investigator does not know the answer to a question, he or she should respond, “I do not know,” rather than trying to guess, which can cause a loss of credibility (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). Finally, the investigator should keep in mind that during cross-examination, the defense counsel will use a variety of ques- tioning techniques in attempts to establish inconsistencies and prejudices regardless of the strength of the case (Department of the Army, 1985; Fisher, 2004; Lyman, 2008; Osterburg & Ward, 2007). This should be expected, so it is in the investi- gator’s best interest to remain calm, polite, and professional. The best any investigator can do is to bring into court a well-prepared case. The investigator should not expect the defense to plea bargain or stipulate to anything. In fact, the investigator should expect rigorous cross-examination. The in- vestigator must be prepared to provide the best testimony possible, which is grounded in good preparation and coordination with the prosecutor.

Conflict and Perspective The job of investigators is rife with conflict, both within and outside their agencies. Investigators are constantly trying to meet the needs of the investigation, and when someone or something blocks those needs, conflict ensues; therefore, it is important to understand the importance of perspec- tive as it relates to dealing with conflict between entities (inter-conflict) and with- in entities (intra-conflict) (Vecchi, 2006). Many of the most noticeable investigative conflicts occur inter-organizationally with entities outside of the investigator’s parent agency. For example, an investigator who needs a certain witnesses’ testimony would experience conflict if that witness was not allowed to testify. Likewise, conflict would occur if, at the last minute, a prosecutor unilaterally decides to plea a defendant to a lesser charge against the wishes of the investigator, causing the investigator to lose credibility with his or her agency be- cause the bigger crime was not charged as promised. Intra-organizational conflict occurs when an investigator’s needs are blocked by someone within his or her agency (Vecchi, 2006). For example, an investigator who believes that an undercover buy-walk pur- chase of drugs from a suspect would be the best way to prove the case is prevent- ed from doing so from the supervisor who believes that a buy-bust scenario would be better. In this example, differences in perspective are at the root of the conflict. The investigator is focused on the buy- walk scenario because he or she perceives that this will lead to a better case, as this will allow multiple drug purchases from the suspect (thus more charges) and better the odds of the undercover officer being able to penetrate deeper into the crimi- nal organization and eventually arresting more people. Contrarily, the supervisor is focused on the buy-bust scenario because this will ensure an arrest and likely con- viction, productive statistics, and allow for the recovery of the buy money for other operations.

Waco: An Example of Perceptual Conflict One of the most enduring and vivid exam- ples of how differences in perspective can underpin deadly conflict occurred in 1993 during the siege at Waco, Texas (Boyer & Kirk, 1995; Dennis, 1993; Vecchi, 2002). On February 28, 1993, Bureau of Alcohol, Tobacco, and Firearms (ATF) agents raided the Mount Carmel Center with a search warrant for illegal weapons. Upon attempt- ing to serve the warrant, four ATF agents were killed and 16 others were wound- ed. Additionally, an undetermined num- ber of Branch Davidians were killed or injured. Among the Branch Davidians in- jured was David Koresh, who was their leader. Following the botched raid, the ATF agents withdrew and the FBI deployed their elite tactical and negotiation teams from Quantico, Virginia: the Hostage Rescue Team (HRT) and the Critical Incident Negotiation Team (CINT). Negotiators began negotiating with Koresh and some of his followers, while the HRT set up a perimeter around the compound and de- ployed armored vehicles. The CINT advised against using ha- rassment and favored establishing rap- port and trust with Koresh and his follow- ers (Boyer & Kirk, 1995; Dennis, 1993; Vecchi, 2002). Nevertheless, the electricity to the Mount Carmel Center was cut off, and the compound was illuminated with bright lights at night to increase the pres- sure on the Branch Davidians to surrender. These actions by the HRT occurred despite objections from the CINT, which caused Koresh and his followers to perceive this ac- tion as a “huge setback.” The HRT wanted to show force, but the CINT believed that force would break the fragile trust between Koresh and the negotiators. Negotiations continued and Koresh al- lowed several of his followers to leave the compound (Boyer & Kirk, 1995; Dennis, 1993; Vecchi, 2002). Despite this success, the HRT responded by playing loud music causing Koresh to respond by saying that no others would come out. The conflict between the HRT and the CINT intensi-

14 THE FORENSIC EXAMINER® Spring 2010 www.acfei.com

fied, as the CINT tried to influence the FBI commanders to use negotiation techniques to persuade the Branch Davidians to sur- render while the HRT continued to increase their tactical posturing. A tear gas plan was ultimately decided upon. The HRT subse- quently cleared away Koresh’s cars and other vehicles. In response, some Davidians held children up in tower windows and a sign reading “Flames Await” was posted. On April 19, 1993, an FBI negotiator telephoned the Branch Davidians and an- nounced the siege. The HRT then began inserting tear gas into the compound us- ing armored vehicles and the Davidians opened fire on them. The HRT contin- ued the application of tear gas, breach- ing several areas of the building, causing a portion of the roof and the right-rear wall to collapse. Thereafter, fires started in at least three locations within the compound. The CINT telephoned Koresh and im- plored him to lead his followers out safely; however, only nine Davidians fled Mount Carmel and were subsequently arrested. Several FBI agents then heard “systematic gunfire,” which convinced them that the Davidians were killing themselves. After the fire was squelched, more than 80 Branch Davidians, including 22 children, were found dead (Boyer & Kirk, 1995; Dennis, 1993; Vecchi, 2002).

Differences of Perspective By instinct and training, the HRT was inclined to action (Boyer & Kirk, 1995; Dennis, 1993; Vecchi, 2002; Vecchi, 2006). One member of the HRT stated: “A crime’s been committed. I’m talking the murder charges and you’ve got to do something about it. You CAN NOT [emphasis add- ed] just let these people sit” (Boyer & Kirk, 1993). An HRT sniper stated: “The more uncomfortable we make them inside, the more apt they are to try and negotiate bet- ter” (Boyer & Kirk, 1995). The negotia- tions coordinator at Waco, exhibited a dif- ferent perspective: “You can’t deal with a cohesive group like it’s a group of bank robbers because the things you can do to

bank robbers to make them come out sim- ply drives the Davidians together. If you look at the core of a nuclear bomb, it’s this tightly packed ball of uranium, and what makes that so powerful is it’s so tightly packed. The Davidians were tightly packed and all we did was compress it even more and make it more volatile” (Boyer & Kirk, 1995). The conflict between the HRT and the CINT was more than just a difference of perspectives; it was also played out physical- ly (Boyer & Kirk, 1995; Dennis, 1993). For example, during a negotiation between the FBI chief negotiator and Steve Schneider (an assistant to Koresh), Schneider informed the negotiator that the HRT was running over their [Davidians’] guard shacks. The negotiator, surprised and upset about not knowing about this, tells Schneider: “You’re kidding, I know they’ve [HRT] been or- dered NOT [emphasis added] to go in there!” (Boyer & Kirk, 1995). During Waco, conflict developed over the perceived differences in perspectives and world views between the tactical and nego- tiation teams. This conflict occurred as a re- sult of the individual organizational culture of each team, which separated them from each other based on their differing perspec- tives, world views, beliefs and philosophies. Likewise, but from an individual perspec- tive, investigators also experience conflict as a result of differences of opinions and per- spectives on how best to handle investiga- tions (Boyer & Kirk, 1995; Dennis, 1993; Vecchi, 2002). To reduce this conflict, the investigator must be aware of these other opinions and perspectives and take them into account when presenting alternatives that strive to meet the needs of all stakehold- ers of the investigation (Vecchi, 2006).

References Boyer, P. J., & Kirk, M. (1995). Waco: The inside

story (M. Kirk, Director). In M. Kirk, M. McLeod, & K. Levis (Producers), Frontline. Bos-

ton: WGBH Educational Foundation. Criminology Today. (1995-2002a). Drug abuse and

crime. (chap. 13). Retrieved from http://cwx.pren- hall.com/crim2day/chapter13/

Criminology Today. (1995-2002b). Technology and crime. (chap. 14). Retrievedfrom http://cwx.pren- hall.com/crim2day/chapter14/

Dennis, E.S.G., Jr. (1993). Evaluation of the handling of the Branch Davidian stand-off in Waco, Texas: February 28 to April 19, 1993. Washington, DC: U.S. Government Printing Office.

Department of the Army. (1985). Law enforcement investigations. Washington, DC: Author.

Dyson, W. E. (2005). Terrorism: An investigator’s handbook (2nd ed.). Cincinnati, OH:

Anderson Publishing. Fisher, B. A. J. (2004). Techniques of crime scene

investigation (7th ed.). Boca Raton, FL: CRC Press.

Lyman, M. D. (2008). Criminal investigation: The art and science (5th ed.). Upper Saddle River, NJ: Prentice Hall.

Osterburg, J. W., & Ward, R. H. (2007). Criminal investigation: A method for reconstructing the past (5th ed.). Newark, NJ: Lexis-Nexis.

Vecchi, G. M. (2006). Assessing organizational group conflict in law enforcement hostage/barricade man- agement. Ann Arbor, MI: Proquest.

Vecchi, G. M. (2002). Hostage/barricade management: A hidden conflict within law enforcement. FBI Law Enforcement Bulletin, 71(5), 1-7. n

Spring 2010 THE FORENSIC EXAMINER® 15(800) 592-1399

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

 

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