Legal issues for investigators

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Legal issues for investigators
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acts.wmv...\Mom welfare cheat.wmv\Infamous
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statements.wmv...\Murder or mansl.wmv...\infamou
s defts\Andrea Yates.wmv...\Legal Issues\William
Strier.wmv\O.J.\Hotel robbery.wmv\O.J.\Audio
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Nothing
Guess, hunch
Continuum of Proof
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Crime/public offense (Calif. P.C. 15-19)

• An act committed or omitted in violation of a
  law forbidding or commanding it
• Carries punishment of death, imprisonment, fine,
  removal or disqualification from public office
• Types of crimes
• Felony Punishable by imprisonment in State
  Prison (normally not less than 1 year)
• Misdemeanor All lesser punishments
• Infraction Not punishable by imprisonment

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Elements of a crime

• Each component of an offense that must be proven
  beyond a reasonable doubt
• Examples
• Burglary (P.C. 459)
• Robbery (P.C. 211)

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Phil Spector case charge 2nd. degree murder

• Jury to decide only on this charge
• Murder (187a PC) Murder is the unlawful
  killing ofa human being, or a fetus, with malice
  aforethought.
• Malice (188 PC) Such malice may be express or
  implied.
• It is express when there is manifested a
  deliberate intention unlawfully to take away the
  life of a fellow creature.
• It is implied, when no considerable provocation
  appears, or when the circumstances attending the
  killing show an abandoned and malignant heart.
• Proving that someone not acting in self-defense
  knowingly pointed a loaded gun at another person
  may be enough to establish malice (see later
  slide)
• Degrees of murder (189 PC) All murder which
  is...willful, deliberate, and premeditated...is
  murder of the first degree. All other kinds of
  murders are of the second degree.
• Penalty for 2nd. Degree murder is 15 years to
  life. 85 of the sentence must be served.

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Distinguishing between murderand
manslaughterLos Angeles Times, 9/19/07

• Jurors were told that to find Spector guilty
  ofmurder, they had to conclude he
  acted"deliberately with conscious disregard
  forhuman life.
• Manslaughter requires recklessness, but not
  knowledge of a threat to life.
• California jurors often look for the "I don't
  care" attitude.
• "If you can show they were aware a life could be
  lost, yet in the face of that, exhibited that 'I
  just don't give a damn whether this person dies
  or not' attitude, then a murder conviction
  becomes a real possibility...If jurors can see
  reason or logic, despite recklessness, they often
  opt for manslaughter, rather than murder.
• Recklessness A driver late for a job interview
  tries to pass a car on a blind curve across a
  double yellow line. He collides with an oncoming
  car and kills the driver.
• Murder A game of Russian roulette, where one
  person spins the guns cylinder and presses the
  barrel against anothers temple. The clear
  awareness that a life could be lost makes the
  survivor a murderer.

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Types of evidence

• Direct (Lectric Law)
• Proves a fact without inferences or presumptions
• Often eyewitness testimony what a witness
  personally heard or saw
• Circumstantial
• Inferences drawn from established facts
• Opinion evidence
• Usually only from expert witnesses

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Hearsay

• Facts or circumstances outside the personal
  knowledge of a witness, offered to prove the
  matter stated
• Deprives a defendant of the right to confront
  their accuser
• Inadmissible at trial with many exceptions
• Confessions, statements against interest
• Official and business records

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Spectors initial admission later exculpatory
statements

• At a suppression hearing Spector asked that his
  admission to officers that he accidentally shot
  the victim be suppressed because he was under the
  influence of prescription drugs. His motion was
  denied. Judge Fiedler ruled that this admission
  can be introduced.
• Spectors lawyers also asked to introduce later
  exculpatory statements made by Spector to police,
  that Clarksons death was by her own hands,
  either an accident or a suicide. Judge Fiedler
  repeatedly refused to allow these statements in
  unless Spector takes the stand and can be
  cross-examined.

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Admissibility of prior conduct

• Evidence Code sec. 1101 defines what
  priorconduct can be admitted as evidence that
  theaccused may have committed the present crime
• For example, evidence of past burglaries
  isusually inadmissible against someonecharged
  with a new burglary
• BUT evidence that shows motive, opportunity,
  intent, preparation, plan, knowledge, identity,
  absence of mistake or accident is admissible
• So, if the new burglary is done in a very similar
  way to the old, then how the old was done may be
  admissible (i.e., pattern evidence)
• Past conduct need not have resulted in arrest or
  prosecution
• Evidence Code section 1108, passed in 1995,
  allows prosecutors to introduce evidence that a
  sex crimes defendant has committed sex offenses
  in the past, even if they were never prosecuted
  or convicted. Evidence Code sec. 1109 does the
  same in cases of domestic violence

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Spector trial Dorothy Melvin (5/3/07)

• In 1993 she was at Spectors houseand found him
  pointing a gun at herNew car. When she objected
  hepointed the gun at her, ordered her
  backinside and ordered her to strip. She went
  inside and they argued. She was finally able to
  leave, leaving her handbag behind.
• She asked police to help her retrieve her
  handbag. Officers who responded temporarily
  handcuffed Spector while they helped the victim.
• Prosecutors played a message Spector left on her
  answering machine Be very careful what you say
  to me because nothing you say is worth your
  life."
• She did not report the incident to police -- she
  said she was Joan Rivers manager and wanted to
  avoid a scandal
• She stayed in touch with Spector. She never
  again saw him alone

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Parties to a Crime

• Principals Directly involved in the
  commission of a crime
• Aiders and abettors California law makes
  everyone who in any way promoted the
  commission of a crime liable as a principal
• Accessories (after the fact) Those who help
  conceal a crime after its commission are
  liable as accessories

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Parties to a crime When things get complicated

• Multiple suspects at a scene
• Multiple occupants of a vehicle
• Conflicting accounts
• Alibis
• Bottom line its the investigators job to sort
  it out never leave it to a prosecutor or jury!

Why? Check out these disasters. . .
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Man Accused in O.C. Toll Road KnifeSlaying Is
FreeProsecutors say the victims instigated the
attack. 'This isshocking to me,' the surviving
brother says. L.A. Times 2/1/05
Murder charges were dropped against Rodrigo
Requejo, 31,owner of a motorcycle shop and a
reputed Hells Angel,who was arrested on
12/21/2004 for stabbing to death JustinAmmann
and wounding his brother Jason Ammann at a
trafficaltercation. Requejo, who fled the
scene, was fingered byJason Ammann, who told
deputies that the suspect assaultedthem and
yelled this is the Hells Angels as he stabbed
hisbrother to death. Three independent
witnesses since came forward to say that the
brothers started the altercation by pursuing
Requejo, beating him and dragging him from his
truck. Requejo made his problems worse by falsely
telling deputies that he had not been present
during the incident. Prosecutors say that no one
will face any charges.
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Is Justice Done in 2 Versions? A California
murder case in which two juries were
tolddiffering accounts of events raises concerns
about fairness,ethics and tactics. Los Angeles
Times, 3/2/05
In 1990 an L.A. County D.A. argued to a jury
thatTauno Waidla used a hatchet to kill a
woman.This is a special circumstance so Waidla
got death. Several months later, in a separate
trial of Waidlas accomplice, Peter Sakarias, the
same prosecutor told another jury that Sakarias
used a hatchet to kill the victim. Sakarias was
also sentenced to death. Although the evidence
revealed that Waidla delivered the death blows,
while Sakarias only struck the victim after she
was dead, the prosecutor argued at Waidlas trial
that he struck all the hatchet blows. At
Sakarias trial he suggested that Sakarias struck
all the blows. On appeal, the Calif. Supreme
Court agreed that the theories were inconsistent
and set aside Sakarias death sentence, but not
his murder conviction. As to Waidla, who
admitted striking the victim with a hatchet
before she died, the Court ruled that attributing
all hatchet blows to him was harmless error and
his death sentence was allowed to stand.
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...another reason you dont want to live in
Florida
You are a Pensacola homicide detective. On
November 26, 2001 you arrive at the scene of a
residential fire. Inside the home, lying dead on
a recliner, is a 40-year old father of two. His
head has been brutally caved in. You interview
the dead mans teenage sons the next day. Both
extensively confess to the murder, on tape,
providing many details that you confirm. They
say they snuck up on their sleeping father and
one boy beat him to death with a baseball bat.
Your investigation reveals
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• One boy told his former foster mother that he and
  his brother were going to murder their father.
• One boy and a male adult neighbor were having a
  sexual affair. The neighbor was known as a
  squirrel but not as a violent person.
• You arrest the boys, who recant their confession.
  Now they insist the neighbor killed their father
  while they hid in the neighbors car.

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• The neighbor strongly denies having anything to
  do with the murder. After telling different
  stories, he admits that he hid the boys after
  they killed their father. He also washed their
  bloodstained clothing.But the killing was not
  his idea or doing.
• What do you do?

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Believe it or not!

• The boys testified before a Grand Jury that
  the neighbor committed the murder while they
  hid in his car.
• The same prosecutor
• Charged the boys with the murder (as adults),
  accusing them of caving in their fathers head in
  with a baseball bat.
• Charged the next door neighbor with the murder,
  accusing him of caving in the dead mans head
  with a baseball bat while the boys hid.
• The neighbor went to trial first. A jury
  returned a verdict, which was sealed.

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• One week later the boys went to trial. They
  were convicted. The neighbors verdict was
  then read. He had been found innocent.
  (The boys confessions were played at both
  trials.)
• The prosecutor later said it was up to the
  juries whether to believe the neighbor, and
  whether to believe the boys.
• Detectives agreed there had been a
  near-total lack of evidence against the
  neighbor. One said that he never felt the
  neighbor was the killer. Both were
  uncomfortable that the neighbor was charged
  with 1st. Degree murder.

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Heres what law professors said (Los Angeles
Times, 9/7/02)

• Christopher Slobogin, a law professor at
  the University of Florida, told
  Associated Press that, while it is rare to
  convene separate trials for the same
  crime based on differing prosecutorial theories,
  it does occur
• It happens when the prosecution has probable
  cause that both sets of defendants are involved,
  but isnt positive which set of defendants is
  responsible and leaves it up to the juries to
  decide.
• Mark Seidenfeld, associate dean at Florida
  State University Law School, disagreed,
  saying prosecutors should have made up their
  minds about who they believed was guilty
  and tried only that case.
• US Attorneys Manual, sec. 9-27.220 The
  attorney for the government should
  commence or recommend Federal prosecution...if
  he/she believes that the person's conduct
  constitutes a Federal offense...and that the
  admissible evidence will probably be
  sufficient to obtain and sustain a
  conviction....

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• On 10/17/02 the Judge who presided over the
  boys trial threw out their convictions. Jurors
  had said they believed that the neighbor actually
  committed the murder, but that the boys let him
  in the house.
• At a courthouse rally for the boys the
  forewoman at their trial said the jury never
  thought the boys committed the crime. She said
  we always thought that there was going to be
  some kind of rehabilitation, that the boys were
  going to be taken somewhere where they could have
  a new life and learn to be productive citizens.
• According to the judge, the prosecutor said
  that if everyone had been convicted the State
  would have asked for the neighbors conviction to
  be set aside. He thought that was ridiculous.
• Through a special mediation procedure, the boys
  were later given terms of six and seven years in
  a juvenile prison.
• The neighbor was later tried and convicted of
  child imprisonment (he was accused of molesting
  the boys) and of being an accessory after the
  fact in the murder. He got 30 years
• Court TV coverage

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Conspiracy

• Websters definition
• to join in a secret agreement to do an
  unlawful or wrongful act or an act which
  becomes unlawful as a result of the secret
  agreement
• to act in harmony toward a common end
• California law
• Two or more persons
• Normally requires an overt act something
  done in furtherance of the conspiracy by one
  of the conspirators
• Punishable just like the intended crime

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Intent

• General A person intended to commit the acts
  that constitute a crime
• Not necessary to show they intended to break the
  law
• Also described as knowing conduct
• Examples Possessing/selling drugs machinegun
• Specific There was a particular purpose in
  mind
• Willfully usually means a specific intent to
  break the law
• Examples Theft Auto theft Burglary

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Phil Spector case Special instruction number 3

• On 9/19 Judge Fielder said he would throwout
  special instruction 3, which some jurors
  complained was confusing. He said that this
  instruction, which the defense had asked for, was
  incorrect as a matter of law. The prosecution
  agreed with the judge, while the defense
  objected.
• SPECIAL INSTRUCTION 3 As I have instructed
  you, to be guilty of the crime of which the
  defendant is accused, second degree murder, the
  defendant must have committed an act that caused
  the death of Lana Clarkson. It is the
  prosecutions contention that the act committed
  by the defendant that caused the death of Ms.
  Clarkson was (to) point a gun at her, which
  resulted in the gun entering Ms. Clarksons mouth
  while in Mr. Spectors hand. The prosecution
  bears the burden of proving that defendant
  Spector committed that act. If you do not find
  that the prosecution has proved beyond a
  reasonable doubt that the defendant committed
  that act, you must return a verdict of not
  guilty.
• According to legal observers, this instruction
  suggests that to find Spector guilty it is
  necessary to believe beyond a reasonable doubt
  that he specifically intended to kill Clarkson.
  But the law of 2nd. Degree murder does not
  require a specific intent to kill, only what one
  expert called a callous disregard for life.

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Insanity defense

• Insanity means that at the time of the offense
  the accused was incapable of
• Knowing or understanding the nature and quality
  of the act and
• Distinguishing right from wrong (P.C. 25b)
• Insane acts must be the product of mental disease
  or defect
• Voluntary intoxication is not a defense
• Personality disorders are not enough
• Defendants usually plead not guilty and not
  guilty by reason of insanity
• Separate trials are held, usually in front of the
  same jury
• If a defendant is found guilty of the offense at
  the first trial, where sanity is presumed, the
  second, sanity trial takes place
• To prevail at this trial, the defendant must
  demonstrate by a preponderance of the evidence
  that he/she was insane
• Unanimous verdicts are required for both trials

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Cary Stayner The Yosemite Killer Was he insane?
(From the Los Angeles Times, 9/16/02) On 9/16/02
jurors rejected the argument thatStayner was
legally insane. One month earlier the same jury
convicted Stayner of the 1999murders of Carole
Sund, 42, her daughter, Juli, 15 andSilvina
Pelosso, 16. The three had been staying at a
lodgewhere he was a handyman. At the time of
his conviction Staynerwas serving a life term
for beheading a park tour guide,Joie
Armstrong. Prosecutors said that Stayner was
obviously abnormal, but thathis confession, in
which he admitted burning a car and doingother
things to cover up the crimes, demonstrated that
he knewthe difference between right and wrong.
The defense contended that Stayners family had
a history ofmental disorders and Stayner claimed
that voices told him to kill.One expert said
that Stayner was psychotic, while two
othersdisagreed. Stayner got the death penalty
and is presently on death row.

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Train derailment and collisionJanuary 26, 2005
Extract from L.A. Times 1/27/05 Juan Manuel
Alvarez faces 11 counts of murder under "special
circumstances" according to L.A. County Dist.
Atty. Steve Cooley.Alvarez stabbed himself in
the chest with a knife and tried to slit his
wrists. Under state law, he could face the death
penalty if convicted, but the decision whether to
seek it has not been made. Alvarez, described
as "deranged" by Glendale Police Chief Randy
Adams, was under a suicide watch. This man had
a wanton and willful disrespect for the lives of
others. He is now going to be held accountable
by the justice system," Cooley said."The fact
that he was distraught or distressed isn't a
defense here that is no excuse for endangering
so many lives...He is not as distraught as the
next of kin of 11 murder victims and more than
100 people injured Cooley said. Cooley added
that pursuing an insanity defense would "very,
very difficult."
UPDATE On 9/21/07 the judge dismissed one of
the defense lawyers for repeated delays.
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Andrea Yates Conviction TossedLos Angeles Times,
11/10/05 Andrea Yates, the mother whoadmitted
drowning her five childrenin 2001, will get a
new trial. Courtsruled that her right to a fair
trial wasviolated by false testimony from
aprosecution medical expert, whosaid that
Yates actions werepatterned on a T.V. episode
ofLaw and Order about a mother who drowned her
kids in a bathtub.This evidence was considered
by the jury when determining whether Yates was
legally insane. But it turns out that no such
television showever aired.
UPDATE In July 2006 Yates was found not guilty
by reason of insanity and committed to a mental
institution.
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On October 31, 2003 William Strierrepeatedly
shot an attorney outsidethe L.A. County
courthouse. Strierwas supposedly angry that he
wasnot receiving sufficient money froma trust.
He and the attorney, whorepresented the trusts
guardian,had never met. The attorneyrecovered.
At Striers trial a cameraman testified that
Strier yelled thats what you get for stealing
my money! Striers attorney claimed that the
shooting was a psychotic episode caused by
Striers use of painkilling drugs, and that the
financial dispute left Strier unable to pay for
an operation on his back. Strier showed up at
court in a hospital bed, which he said was
necessary for his injury. In January 2006 Strier
was convicted of attempted murder. He got life
plus 25 years. This wasnt Striers first time.
In 1969 he had shot a neighbor four times for no
good reason. He got probation and a fine.
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Attempts

• Elements (P.C. 21a)
• Specific intent to commit a crime, and
• Direct but ineffectual act to commit the crime
• Some attempts are separately defined in the
  statutes
• Where not, an attempt is punishable by one-half
  the crimes penalty
• For murder, by life imprisonment (P.C. 663-5)

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Privileged communications

• Purpose In some relationships, honesty serves a
  public purpose greater than law enforcement
• Privilege attaches only to things said
• Privilege can be invoked or waived by the speaker
• No privilege when planning to commit a crime
• Marital (E.C. 980)
• During and after relationship
• Attorney-client
• Exception to prevent death or serious bodily
  injury
• Reporters shield (P.C. 1070)
• Source of information, whether or not published
• Unpublished information, incl. notes

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Impeachmentall witnesses

• An attack on the credibility of awitness
• Can be done by either party tolitigation
• Basis
• Unpardoned felony conviction
• Reputation for honesty and veracity
• Unable or not in position to see, hear, etc.
• Other inconsistent statements
• Bias, self interest or other improper motive

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Impeachment peace officers

• California rule Pitchess motion (P.C. 1045)
• Access to officer personnel records for the prior
  five years
• To get an in-camera review petitioner must show
  that scenario of alleged officer misconduct
  could or might have occurred (Warrick v.
  Superior Court, CA Supreme Court, no. S115738,
  6/2/05)
• More than just saying so need some evidence
• If dishonesty claimed, must relate to prior
  dishonesty
• If brutality claimed, must relate to prior use of
  excessive force
• Federal rule applies everywhere Brady v.
  Maryland
• Due Process clause of Fourteenth Amendment
• Prosecution must disclose all evidence relating
  to guilt or innocence that may be favorable to
  the accused
• Includes grounds for impeaching prosecution
  witnesses
• No time limits

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Search and Seizure
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Purposes of a search

• Fruits of the crime (e.g.,stolen property)
• Instrumentalities of the crime (e.g., a gun,
  burglary tools)
• Circumstantial evidence of a crime (e.g.,
  falsified records)
• Leads to other sources of evidence (e.g.,
  identify conspirators)

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Warrantless searches

• Consent
• Administrative search authority(e.g., DMV, ABC)
• Incident to arrest
• Person
• Entire passenger compartment of vehicle
• Immediate vicinity, for weapons
• Inventory search (must be non-pretextual)
• Impounded vehicle
• Personal belongings taken

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Compelled evidence-gathering techniquesSubpoenas
and search warrants

• Subpoena usually for persons and/or documents
• Issued by courts for trial
• Some agencies can issue administrative subpoenas
  (e.g., telephone toll records)
• Grand Juries (investigative phase only)
• When need a search warrant?
• Looking for physical evidence of a crime
• Fear of tampering or destruction
• Preservation and handling issues (e.g., latent
  fingerprints)
• Need evidence of a precise location where found

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Search warrants

• For persons, places or vehicles
• Compelled technique
• Intrusive and dangerous
• Requires planning and great care
• Tests
• Must we gather this evidence?
• Is it available elsewhere?
• Can it be preserved without being forcefully
  seized?
• Are less intrusive options available?

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Search warrant basisfor issuance

• Probable cause what would leada reasonable
  person, exercisingnormal caution, to believe
  that
• A crime has occurred, is taking place or is being
  planned
• Evidence or fruits of the crime are present at a
  certain location
• California rules for issuance same as Federal
• Federal laws and court decisions must be followed
• Exception under California State law cannot
  issue for misdemeanors

41
Search warrant sources of information

• Records, including criminalhistories
• Observations
• Witnesses
• Law enforcement officers
• Informers
• Private citizens
• Non-police witnesses not proven reliable cannot
  be the sole basis without corroboration
• Hearsay permissible

42
Motor vehicles

• No warrant necessary (Carroll v.U.S.)
• May search anywhere, including closedpackages
  (USA v. Pinela-Hernandez,9th. Circuit)
• Usually probable cause is required
• Need a fair probability that contraband or
  evidence will be found
• Not required for inventory search of an impounded
  vehicles
• Sole basis for a vehicle search cannot be an
  uncorroborated tip from someone whose
  reliability has not been established (U.S. v.
  Morales, 9th. Circuit)

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Premises

• Expectation of privacy
• None in a public area
• Some in a vehicle
• More in another persons dwelling
• Greatest in ones own dwelling (home or
  apartment)
• Cannot enter dwelling without search/arrest
  warrant
• Exception - exigent circumstances
• Save a life or prevent imminent destruction of
  evidence
• Probationers and parolees have a lesser
  expectation if terms include warrantless search
• If search based on reasonable suspicion, fruits
  can be used in criminal prosecution (U.S. v.
  Knights, Supreme Court)

44
Persons

• No warrant required
• Search incident to arrest
• Terry - reasonable suspicion that someone has a
  weapon
• Probable cause that someone possesses evidence,
  and failing to secure it will result in its loss
  or destruction
• Unreasonable for a hospital to perform
  non-consensual tests to identify drug users, then
  to use this evidence against them in court
  (Ferguson v. Charleston, Supreme Court)
• Even if a wanted person is clearly visible inside
  their dwelling, cannot enter without arrest or
  search warrant (U.S. v. Oaxaca, 9th. Circuit)

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Privacy expectations some extreme examples

• Warrantless search of a closedtent on Federal
  land ruled illegal (U.S. v. Sandoval, 9th.
  Circuit)
• Squeezing an opaque bag during immigration checks
  ruled illegal (Bond v. U.S., Supreme Court)
• Warrantless thermal imaging of garage ruled
  illegal as unusual device is not in general use
  (Kyollo v. U.S., Supreme Court)
• No murder scene exception to search warrant
  (Flippo v. West Virginia, Supreme Court)