Webinar presenters Martin Stark and Dr. John Schultz answered a number of your questions after their presentation, The Investigation and Prosecution of Criminal Vehicular Homicide Cases: The Prosecution Rests (Part 3). Here are just a few of their responses.
Audience Question: Two people can see the exact same event but see very different things, but as you said, witnesses are so important. How do you reconcile those differences and not let them derail your case?
Martin Stark: And I can tell you that generally, the witness statements do not match because they’re always from different angles, they’re from different observations. It’s going back to we didn’t really get into this, the reconstruction part of this just tying everything in together because you know where the crash happened, because there’s going to be a point of impact or area of impact. In the roadway. I use the pictures more than anything. Because if they say, I don’t think the car was going in real fast but then you’re looking at the entire front of a pickup truck smashed in, you know that there is speed. So, you just have to look at your other evidence and match it up with the statements. And if one of the statements is a little bit different than the other, I just don’t get lost in the weeds with it, because we know what happened. One car hit another car and, you got the evidence of the EDR. If I got an EDR saying that he’s going 115 miles an hour and someone says, I think he was going the speed limit. You just have to argue that to the jury explaining, you know, what are you going to rely on here?
John Schultz: From my perspective, we just gather everything and credit or discount everything and use physical evidence. If there’s a question with the witnesses. The tractor-trailer was definitely going Northbound, but he swore up and down that it was going south. But it did not match any physical evidence. And then, finally, years later, I ran into the same individual and he conceded that he was wrong, so it does happen, the physical evidence, as Martin said, is what we’re going to focus on.
Audience Question: Do all motor vehicles have those recorders? Like even, motorcycles, RV’s? Do all of them have those recorders?
John Schultz: No, No. No. Certain vehicles. I wish motorcycles did but they don’t. RV’s most likely. And then certain manufacturers, every manufacturer is different. There is a federal law that governs it. But the newer vehicles, yes. But when you start getting into your older vehicles near the two-thousands, and certain manufacturers from overseas, they’re limited. But as we move forward, years go by, they’re more and more.
Audience Question: We often hear that if law enforcement wants a successful prosecution, we got to bring the evidence, you know, build the case. What are some of the biggest mistakes law enforcement makes that would help make the prosecutor’s job harder to get that win? And what advice do you have just in terms of, if you want to win the case, what should law enforcement be doing better?
Martin Stark: Most specifically with vehicular homicides and the DUI manslaughters. Again, you have to get the 911 calls, because you’re going to get witnesses that you didn’t even know you had. And I would say, the people that don’t search for the videos, especially in the rural, I mean, in the urban areas, there’s always an ——– or something around that video. And especially on an ejection case, you have to figure out who the driver is. And I would say it’s not collecting the forensics because the defense attorney, everything you don’t do, the defense attorney is going to attack you for what you didn’t do. Regardless of the evidence, you have shown that you could have done this, this, and this. So, it’s just doing the basic foundation of the case to make sure you can prove the person was driving and you can prove that person was intoxicated. If you don’t get the person’s blood, obviously, that’s going to be a problem, and they’re going to attack everything that you do, and you just have to go into it knowing that.
Host: Awesome. John, do you have anything else to add to that?
John Schultz: I always kind of convey to the new guys. Think like a defense attorney if it’s all possible. Think like a defense attorney when you’re trying to do your investigations. Because, as Martin said, there’s a gap, they’re going to, they’re going to pry an opening expose, and so if you have your bases covered, do due diligence.
Martin Stark: On that case where the man backed out of the driveway, the defense attacked Corporal Schultz for, “Well you didn’t really do anything to investigate this crime.” It’s like, well, “I got the video.” Yeah, so, you’re really in a no-win situation kind of. But if you come to the table with all the goods, it’s kind of hard, and that’s all they have. That’s when you can understand. And they say you just didn’t do a good investigation. I’ll take that.
Audience Question: I’m just going to ask the logical follow-on question to this… even though an officer may know a neighborhood and worked in a neighborhood for years? You never know when that business has added a new security system or that neighbor has added a new ring doorbell so even if you think you know the territory I’m supposing you both would say you still got to go back and do the legwork because you never know who’s upgraded their exterior security systems.
John Schultz: Oh, clearly. And don’t rely on that. It’s going to be there next week. This is really to move quickly. It’s a lot of the newer ones are there in the cloud. And you may be able to retrieve it. But your racetrack gas stations differ from your 711 versus your Circle K and whatever’s in the jurisdiction. But don’t go home saying get that next week. Because they have had and where they taped over them. I’ve had and where they thought they were taping but they weren’t, and they thought they were under this protection for a year. Then come to find out when I pulled it that they, there was broken down, where it was a setting that was incorrect. And it never, it hadn’t been recording for a year. So, god forbid that business was robbed. They would have never had anything. Too many systems out there and there’s no universal way. So, you have to approach it as it is going to go bye-bye.
Martin Stark: If they don’t want to give it, if they don’t want to give it voluntarily, that’s when law enforcement has to get with State Attorney’s Office and get the warrant.
John Schultz: Don’t ever, as investigators, let that stymie you. It’s just a chess game of chess. There are moves and countermoves and that’s why, you bring in someone like a Martin, prosecutors because there are tools in their toolbox, that maybe you’re not thinking of that they can help with.
Audience Question: Do you always do a blood draw and get a warrant for it? Or can you only get the blood draw if you suspect use at this incident scene? Talk us through that a little bit.
John Schultz: So, we usually ask for voluntary blood. And sometimes people give it to us, sometimes they don’t. And then you’re going to have to set the predicate with some data where you have some kind of indicators that the person’s impaired to get a warrant for the blood. So, if you have a crash, the person was a driver, and you have a death. And then you smell alcohol, slurred speech, defecated himself, whatever indicators that you have there, you’d want to put that in, and then you would have to get a warrant. Luckily, we’re blessed here in this jurisdiction where we have e-warrants, so I can type this all out at the scene while I keep the person with me. And then I can get the judge to talk to the judge on the phone and go through the signing process electronically. And then I can have the blood drawn, forcibly if necessary so yeah.
Martin Stark: The technical answer to that is, there has to be a reasonable probability that evidence will be found. So, they said, the smell of alcohol or seeing alcohol bottles in the car. There has to be some indication.