WORKING WITH COPS, LAWYERS & JUDGES
Working with Cops, Lawyers & Judges
by Dana Turner, BOL Guru
Working within our nation's justice system can be a trying and unrewarding exercise if you don't know how it works. This presentation will show you how it works -- and how you can use this system to resolve security issues more rapidly and effectively.
The information contained in this presentation is not all-inclusive -- unique situations may require you to seek other alternatives. But this information will guide you in making appropriate decisions in the majority of circumstances. Our justice system contains three (3) primary components:
- Law enforcement;
- Courts; and
These three (3) components are intended to work together to:
- Prevent offenses from occurring;
- Investigate offenses;
- Apprehend offenders;
- Prosecute and punish offenders; and
- Recover property and money for victims.
If you are your institution's Security Officer, you must become knowledgeable in dealing with these components -- and their related processes. Failure to understand how "the system" works may cost you and your institution unnecessary time, resources and money. The topics included in this presentation include a:
- Description of the justice system's components;
- Brief legal primer;
- Explanation of critical documents;
- Suggested investigative strategic plan;
- Methodology for understanding the components' priorities; and
- Description of reporting and prosecuting authorities' interests.
Like any democratic government process, our justice system provides for a system of checks and balances -- to insure that power is shared among the components. The components don't always share the same goals and they often appear to be in conflict with one another. This is the result of our system being an "adversarial" one -- where everything is tested and nothing is taken at "face value" -- and every fact is validated before a representative of any of the components is permitted to act. It's a cumbersome and tedious system that is designed to prevent or identify potential mistakes before any harm is done.
The First Component -- Law Enforcement
If an event involves a crime, your first contact will be with a representative of a law enforcement agency -- likely a patrol officer. The patrol officer will investigate the event, collect evidence and write a report. If the investigation yields significant witnesses, suspects and evidence, the law enforcement agency will likely assign a detective to conduct a follow-up investigation.
Law enforcement agencies are often divided into those with local, state or federal jurisdictions. Examples of law enforcement agencies with whom the Security Officer is likely to be in contact, and their appropriate responsibilities, include a(n):
- Police Department: A police officer's primary responsibilities generally include enforcing city ordinances, and state and federal laws within an incorporated municipality;
- Sheriff's Department: A sheriff's deputy's primary responsibilities generally include enforcing county ordinances, and state and federal laws within an unincorporated geographical area;
- Marshal's Office: A deputy marshal's primary responsibilities generally include the service of arrest warrants and civil papers, and many jurisdictions may also use the term "constable";
- Coroner: A deputy coroner's primary responsibilities generally include the investigation of suspicious or unattended deaths, and the seizure of wills and related legal papers;
- Prosecuting Attorney: A District, City, Prosecuting, Attorney General's or United States Attorney's primary responsibilities generally include the preparation of criminal complaints and the prosecution of criminal actions within the court system, and to find the truth regarding an issue brought to him/her for review or trial;
- Defense Attorney: Although technically not a law enforcement officer, every defense attorney -- either public or private -- is still responsible for obeying all laws and rules of the court; for preparing and defending against criminal actions; and for creating a reasonable doubt in the mind of one juror -- but not for finding the truth regarding an issue brought to trial;
- Prosecuting & Defense Attorney's Investigator: The Defense, District, City, Prosecuting, Attorney General's or United States Attorney's investigators' primary responsibilities generally include the validation of witness statements and evidence collected during the course of a law enforcement agent's investigation, and providing case management and trial preparation assistance to the trial attorney;
- Regulatory agency: An examiner's primary responsibilities generally include examining specific forms of businesses for adherence to -- or compliance with -- laws, rules and regulations; and
- Federal Bureau of Investigation (FBI): An FBI agent's primary responsibilities include enforcing federal laws of all kinds.
The Second Component -- Courts
There are two (2) different court systems in each of the states of the United States -- civil and criminal courts. If the event involves a crime (violation of law), then a criminal court administers justice. If the event involves some harm that is not a crime, a civil court administers justice. Civil and criminal courts are often divided into those with local, state or federal jurisdictions.
As the Security Officer, you may initiate certain court actions -- as well as be subpoenaed by a court. Examples of courts with whom the Security Officer is likely to be in contact, and their appropriate responsibilities, include a(n):
- Small Claims: Solely a local, civil court, plaintiffs may file actions against defendants without using an attorney, generally for losses that are less than $15,000;
- Bankruptcy: Solely a regional, federal civil court, petitioners may file for bankruptcy protection and relief using federal statutes, and arrange to have their assets distributed to creditors with or without the use of an attorney;
- Public Guardian: Solely a local, civil court, the District Attorney may petition this court for legal guardianship of a person who is unwilling or unable to care for his/her own needs, and for control of that person's assets;
- Probate: Solely a local, civil court, various agencies and petitioners may seek distribution of a deceased person's assets;
- Justice: Used as both a local, civil and criminal court and based on a small county's population, a justice court performs all of the tasks normally assigned to a municipal court;
- Municipal: Used as both a local, civil and criminal court, a municipal court hears actions filed by plaintiffs for losses of more than $15,000; issues arrest warrants based upon complaint requests prepared by the District Attorney's office; rules on motions submitted by both prosecuting and defense attorneys; conducts trials involving traffic and misdemeanor offenses; and conducts preliminary hearings involving felonies that may be tried in superior court;
- Superior: Used as both a local, civil and criminal court, a superior court hears actions filed by plaintiffs where the use of a municipal court is inappropriate; hears and decides upon divorces and child custody requests; acts as the appeals court for any municipal court; rules on motions submitted by both prosecuting and defense attorneys; hears all guardianship issues brought by petitioners; and conducts trials involving juveniles and felonies; and
- United States: Used as both a local, civil and criminal federal court, a United States court rules on motions submitted by both prosecuting and defense attorneys; determines asset forfeiture legality and distribution; and conducts trials involving violations of any federal law.
Each court requires the person bringing the action to satisfy a different burden of proof. The trier of fact is a jury, if there is one. Or the judge may be the trier of fact if no jury is requested. An action against an individual may be brought in the civil courts or in the criminal courts -- or both courts, simultaneously.
Civil Court System
A civil action may be brought by either the government or a private party. While there are many instances when a City Attorney, District Attorney or Prosecuting Attorney may file a civil action in the civil courts, a civil action is generally brought by the victim -- a private party. The party bringing the action is called the plaintiff and the party against whom the action is brought is called the defendant. Law enforcement agencies generally are not involved in the investigation of civil offenses -- except where the agency is also the defendant.
The plaintiff in the civil action must prove to the trier of fact that a civil wrong has been committed and that the defendant is the person who committed it. The "standard of proof" is a preponderance of evidence -- proof that leads the judge or jury to believe that it is more probable than not (51%) that a civil wrong has been committed and that the defendant is the person who committed it.
When a defendant is found responsible for committing a civil wrong, he/she is usually ordered to compensate the plaintiff for actual and foreseeable damages the victim suffered as the result of the defendant's wrongful actions. In some cases, the judge or jury may order the defendant to pay "punitive damages" to the victim as punishment, and to deter the defendant from committing the same wrong again. A fine or damage award is generally the only option available to punish the offender.
Criminal Court System
A representative of a law enforcement agency is normally involved in investigating a criminal offense. The law enforcement agent conducts an investigation, writes a report and -- if he/she believes that a crime was committed and that an identified suspect has committed it -- then the officer prepares an "affidavit in support of a warrant". The law enforcement agent submits the crime report and the affidavit to a prosecuting attorney, who may then issue a criminal complaint.
The criminal complaint is issued by the government, known as the "people" or the "state". Only the "state" may prosecute a criminal action in the criminal courts. A criminal action by the "people" means that an action has been filed by a District or City Attorney, the State Attorney General, a United States Attorney, or similar prosecuting authority -- alleging that a violation of criminal law occurred. The party against whom the criminal action is brought is called the defendant.
The "people" in a criminal action must present evidence to satisfy the trier of fact that a criminal violation has been committed and that the defendant is the person who committed it. The "standard of proof" is belief beyond a reasonable doubt (95%) -- proof that leads the judge or jury to become convinced that no other person could have committed this offense.
When a defendant is convicted of violating a criminal law, he/she may be punished by the imposition of a fine, jail or prison sentence -- or even death in certain limited circumstances. The defendant may also be ordered to pay a fine to the court and make restitution to the victim for actual losses caused by the defendant's wrongful actions. This is often included as a condition of probation -- and is enforced directly by the court or through the court's "collection agent" -- the probation department.
The Third Component -- Corrections
If a defendant is convicted of a crime, your next contact will likely be with a representative of the corrections system. Corrections system agencies are often divided into those with local, state or federal jurisdictions. Examples of corrections system agencies with whom the Security Officer is likely to be in contact, and their appropriate responsibilities, include:
- Probation -- County & State: Actually a law enforcement agent, a county or state probation officer is primarily responsible for conducting pre-sentencing investigations; ensuring that convicted persons obey all laws and maintain employment; continually locate, seize and recommend the distribution of assets to be used to pay trial and incarceration costs, fines and victim reparations; conduct continual drug tests and other searches; and arrest and imprison probation violators when it's appropriate;
- Probation -- Federal: Actually a law enforcement agent, a federal probation officer has the same responsibilities as is a county or state probation officer when the offender is convicted of a federal crime;
- Parole -- State: Actually a law enforcement agent, a state parole officer is primarily responsible for conducting pre-release investigations prior to a convicted person's release from incarceration; ensuring that paroled persons obey all laws and maintain employment; continually locate, seize and recommend the distribution of assets to be used to pay trial and incarceration costs, fines and victim reparations; conduct continual drug tests and other searches; and arrest and imprison state parole violators when it's appropriate; and
- Parole -- Federal: Actually a law enforcement agent, a federal parole officer has the same responsibilities as a state parole officer, when the offender is convicted of a federal crime.
A Legal Primer
As the Security Officer, you must have some familiarity with your state's -- and federal -- laws and legal practices. This includes how they are likely to affect you and your institution -- and the differences between laws and practices. This next section gives you several common, important terms and their definitions. Your institution's legal counsel may be able to help you apply them to your circumstances.
Components Of An Investigation
Every investigation contains certain basic components, or "moving parts". Understanding the basic components of an investigation will allow you to develop a successful investigative strategy, and it will also help you to sort those "moving parts" into categories that you can address more easily. For our purposes, these basic components include items and issues involving:
- Places; and
- Victim: A person or entity that suffers a loss or injury during an event;
- Witness: a person who has personal knowledge of an event, experienced through one of the five senses, including:
- Smell; or
- Informant: A person who provides personal or third-party information about an event, with or without expectation of personal gain; and
- Suspect: A person whom the available evidence suggests may have committed a crime. Places
- Crime scene: The geographic location where a crime occurred, or where evidence is located;
- Jurisdiction: The court that has the authority to hear an action, determined by the type and level of crime (e.g., small claims, municipal and superior); and
- Venue: The location of the court that has the authority to hear an action, determined by the crime scene or order from another court (e.g., the county where the event occurred or a change of venue order).
- Crime: An act committed or omitted in violation of a law, and for which a prescribed punishment may be assessed against the offender;
- Evidence item: Any st
tement, writing, material object or other tangible thing presented to the senses, that is offered to prove the existence or non-existence of a fact;
- Motive: A reason for criminal behavior -- often a benefit to self or others;
- Opportunity: The circumstances of appropriate timing, location and presence which suggest a suspect could have committed a crime;
- Means: The tools necessary to commit a crime;
- Intent: A mental state in which a person is fully aware of the nature and consequences of his/her action and elects to proceed with that action; and
- Action: An overt step towards completion of the crime.
As an investigator, you have many responsibilities -- and you are primarily responsible for:
- Gathering information by observation and interview;
- Evaluating the information gathered and determining its truthfulness;
- Drawing conclusions and making decisions based upon that information; and
- Acting -- or making recommendations for others to act -- based upon those conclusions.
Documents accumulate at a startling rate during investigations. The Security Officer will likely become involved with four (4) primary types of documents during an investigation, including:
- Investigative reports;
- Investigative notes;
- Subpoenas; and
- Search warrants.
As you conduct an investigation, you will naturally acquire facts, beliefs, written statements and physical evidence. Your investigative report contains a chronological description of your actions and your conclusions -- and it's often the most important document used to resolve your issue within the justice system. In other words -- your success starts, and often ends, with your report.
While there are many reporting formats that are acceptable, model yours upon the format used by your local law enforcement agency. Most of your issues will be resolved in local courts, so use a reporting format that is already accepted by the agency and the prosecuting attorney.
Secure your evidence and -- when you complete your report -- file it with your legal counsel. This action will trigger your legal counsel's involvement and it may also protect your report from initial, undue scrutiny. The "attorney-client privilege" often extends to the information contained in internal reports, until that report is turned over to a law enforcement agency. Investigative Notes
It's also natural that you will accumulate many notes during your investigation. You'll eventually transfer the information contained in those notes to your investigative report. Consider destroying your notes after you've filed your investigative report. You shouldn't need them anymore and those notes may be subpoenaed by a defense attorney. If you need to retain your notes, forward them to your legal counsel and attempt to protect them as you have protected your investigative report.
A subpoena is a written, legal command to produce a person or a thing -- and any officer of the court may issue a subpoena. Terms of service for a subpoena (e.g., people to produce for a deposition, documents to be produced for handwriting examination and time frames for compliance) are generally negotiable. Insure that all subpoenas served upon your institution are served upon your legal counsel, who may then re-serve them upon appropriate persons.
A search warrant is a written, legal command to allow a law enforcement agency to search a location for specified items -- and to seize items that agents consider appropriate. A search warrant may only be issued by a magistrate (a judge who is not presently holding court). The magistrate reviews reports and affidavits, and interviews the search warrant petitioner, before issuing the warrant. Only a law enforcement agent may serve a search warrant and its terms of service are not negotiable -- it commands immediate compliance.
If law enforcement agents serve a search warrant upon your institution, notify your legal counsel immediately. Have an institution officer accompany the agents on the search and:
- Videotape the search;
- Witness any property seizure;
- Complete an independent, written inventory of items seized by the agents; and
- Write a report describing the event and forward it to your legal counsel.
Your Strategic Plan
An investigator's strategic plan always contains the same basic steps, and it expands or contracts according to the investigation's progress. The phrase "plan your work and work your plan" is particularly appropriate for every investigator. Begin this process by identifying and listing -- in order -- what the justice system components likely will require you to prove, in either a civil or criminal action, including:
- What was misused, misappropriated or misplaced, or is missing that should be present, or is present that should be absent?
- Where did the event occur, both generally and specifically?
- When did the event occur, using ranges of times and dates if the specific date and time are unknown?
- How was the was the act committed?
- Who are the actual and intended victims, likely witnesses, potential informants, and probable suspects?
- Why was the crime was committed?
Establishing Prosecution Priorities
In every criminal action -- and in many civil actions -- you will find that there are several priorities. These priorities are directly linked to the participants' degree of interest in the action, including:
- Your legal counsel's;
- The prosecuting attorney's;
- The defense attorney's;
- The court's; and
- The defendant's.
Keeping these varied interests aligned often becomes your most important responsibility. The participants -- including you -- all have a goal. While all of the participants may have other goals, these are the primary ones:
Your goals include:
- Demonstrating that a crime was committed or that your institution suffered some harm;
- Identifying the person(s) responsible for the action;
- Appearing at all related hearings;
- Identifying sources of repayment for the actual loss and the true costs of investigation; and
- Closing your investigation.
Your Legal Counsel
Your legal counsel's goals include:
- Presenting the results of your investigation in a clear, concise manner;
- Preserving your institution's image;
- Presenting appropriate witnesses, statements, testimony and physical evidence to demonstrate that a crime was committed or that your institution suffered some harm;
- Protecting sensitive, internal information using the attorney-client privilege, if it's appropriate;
- Reducing or eliminating your institution's potential sources of liability; and
- Petitioning the court for the recovery of all losses and related costs.
The Prosecuting Attorney
The prosecuting attorney's goals include:
- Receiving a "turn-key" case from the investigator;
- Insuring that the case meets prosecutorial "thresholds";
- Avoiding a court trial;
- Settling the case before trial using a plea bargain;
- Insuring that all statements and evidence are admissible;
- Presenting all prosecution witnesses, statements and physical evidence available in a truthful, fair and impartial manner, if a court trial becomes necessary;
- Obtaining a conviction; and
- Petitioning the court for the recovery of all losses and related costs to the victim.
The Defense Attorney
The defense attorney's goals include:
- Avoiding a court trial;
- Petitioning the court to exclude any witness statements or physical evidence that may likely convict the defendant;
- Settling the case before trial using a plea bargain;
- Challenging every aspect of the prosecuting attorney's case in an attempt to discredit witnesses or evidence, if a court trial becomes necessary;
- Presenting all defense or rebuttal witnesses, statements and physical evidence available in a manner that benefits the defendant;
- Attempting to develop a reasonable doubt concerning the defendant's responsibility in the mind of one juror;
- Obtaining a mistrial or acquittal; and
- Attempting to reduce or eliminate the defendant's court-ordered repayment of losses or court costs to the victim.
The judge's goals include:
- Continuing as many scheduled court appearances as possible, to another available date;
- Insuring that the defendant is adequately represented and that his/her legal rights are protected;
- Insuring that appropriate legal processes and practices are followed;
- Judging the defendant's degree of responsibility, if a jury is not present;
- Determining the most appropriate punishment for the defendant, upon conviction; and
- Ordering appropriate fines and restitution for the victim, upon conviction.
The defendant's goals include:
- Having the court action dismissed or continued;
- Reaching a settlement with the prosecuting attorney, in lieu of going to trial;
- Avoiding conviction by any means, if there is a trial;
- Repaying no one for losses or costs of any kind; and
- Avoiding incarceration.
Reporting & Prosecuting Authorities
Security Officers -- and other institution personnel -- are often confused regarding just which agency should accept responsibility for the investigation. All local -- and most state -- agencies must accept a report from any person who reports that he/she has been the victim of a crime. There is no requirement, however, that the agency must conduct any further investigation. Agencies also may create "courtesy reports" and forward those reports on to more appropriate agencies.
Most crimes affecting financial institutions are prosecuted using the statutes contained in the United States Code. The FBI is the primary investigating agency regarding these crimes, and the United States Attorney's Office is responsible for prosecuting these crimes. You should report actual or suspected crimes your local law enforcement agency in your local jurisdiction, and to the FBI. The FBI may decline to accept an investigation if it does not meet it's criteria, and both the local prosecuting attorney and the United States Attorney's Office may decline to prosecute a case if it does not meet their individual prosecution "thresholds".
You may sue a defendant for actual losses and costs in civil court, at the same time that he/she is being prosecuted in criminal court. If recovering your losses and costs is your primary objective, using all the power and authority available to you -- simultaneously -- is likely to force a defendant to repay you quickly, in order to relieve the intense pressure.
Because financial criminals often defraud numerous victims, local prosecuting attorneys and the United States Attorney's Office have each created a streamlined approach to prosecuting these offenders. This approach is known as a "fast-track program". A fast-track program allows prosecutors to combine their cases that share "common denominators" and to prosecute them at one time -- in one court. These common denominator's include:
- Information obtained by the prosecutor that is unknown to other agencies and victims;
- Identified suspect(s) who defrauds several victims in the same way;
- Multiple crimes that have been committed using the same means or account; or
- Demonstration of a continuing criminal enterprise.
Confused? Many members of all three justice system components are often confused, so don't feel like you're the only one. Our justice system is evolutionary -- it changes frequently and sometimes illogically. If it's impossible for members of our justice system's components to remain current about laws and practices, it's very unlikely that you'll be able to keep pace with current developments. That's why your institution should retain the services of qualified legal counsel -- with banking expertise -- to guide you.
As your institution's Security Officer, you should be able to consult with your legal counsel whenever the need arises -- particularly involving questions that may ultimately affect your personal liability, or your institution's. After all, your institution's legal counsel may have to defend the institution's decisions -- and your actions -- in court. Your legal counsel will be able to do a better job if he/she is brought into a situation from its very beginning.
The Notes from the Security & Risk Management Seminar - Working With Cops, Lawyers & Judges are general in nature and the duties and the responsibilities of the law enforcement agencies and the names and jurisdictions of the Courts will vary from state to state. The intent is to provide an overview of the US Judicial system and the interaction of a Security Officer with the various agencies and Courts. Consult your local legal counsel if you have questions regarding the agencies and Courts in your state.
First published on 01/01/2000