A Day in the Life of a Prosecutor during COVID-19
Kathryn Marsh is an Assistant Chief of the Special Victim’s Unit and Legislative Policy Co-Chair at the Office of the State’s Attorney for Prince George’s County in Maryland. She has held a career as a prosecutor for seventeen years. For the past twelve years, she has specialized in child abuse, domestic violence and sexual assault cases. She also functions as a professional trainer for prosecutors, staff, law enforcement, educational institutions, community organizations, State organizations and other legal professionals. She serves on National and State Task Forces.
Jessica Wein, MaestroVision’s Vice President of Marketing, met with Kathryn to learn more about her role and ask her some pertinent questions regarding the admissibility of evidence. Here’s what she learned:
Jessica: Can you tell me a little more about your role?
Kathryn: I’m a prosecutor. Specifically, I’m the Assistance Chief for our Special Victim’s Unit. The Special Victim’s Unit handles all felony, domestic violence, child abuse, child exploitation, sexual abuse and sexual assault cases. It’s very interview heavy. We have interviews of minor children, victims, witnesses and obviously suspects (if they decide to give a video recorded interview). In a COVID world, we’re not able to try cases in the courtroom. As of Monday, we’ve had to go back to Zoom hearings, so we’ve had to put a halt to jury trials again. We’ve had to review a lot of our statements and we can still have motions on statements. Legal arguments include: if the statement was admissible, if there was a violation of Miranda or if there was there a violation of the statement being free and voluntary (which would make the statement be suppressed).
I am in a jurisdiction where almost all of our statements are video recorded. We have a child advocacy center which does all of our forensic interviews of children. Child advocacy centers are unique because an independent forensic interviewer (who is certified in forensic interviews of children) facilitates the interviews. Child interviews need to be done a little differently because they have to involve open ended questions. They can’t be suggestive of any answer. They have to let the child tell the story in their own words, and then go back and follow up after that.
Child advocacy centers in general involve a multi-disciplinary team. We’ll have the detective there, myself or one of the other prosecutors in our unit, the caseworker for Child Protective Services, and a referral person who is in charge of connecting the family with all kinds of services. Generally, we watch the interview live in another room. The interviewer takes a break part way through the interview where they’ll come make contact with us and say, “is there anything else you need?”
The ultimate goal is that the child is only interviewed once. So, we ensure the interview is done in a child-friendly, safe environment. Before Child Advocacy Centers, a detective would perform the interview and then bring it to the prosecutor. The prosecutor would let the detective know what information was missing which resulted in the children being interviewed 3 to 4 times which was very traumatizing for them. CACs reduced that. We still participate in those interviews, but they’re performed through WebEx now because of COVID.
I also review police interviews. When they’re done, I get copies of the interviews and review them to make a determination if there an issue with the defendant or suspect’s statement. Even if we think everything’s fine and there’s no issue, a defense attorney can still litigate if they think there’s an issue with the statement.
Jessica: So, you review suspect interviews and witness interviews to ensure there is no information missing and that the laws are abided so that the interview cannot be suppressed?
Kathryn: Correct. So only the interview of the actual suspect can be suppressed. But we have to listen to the victims and the witnesses to make sure that no information is missing, and they weren’t given incorrect information.
Jessica: Who are your main channels of contact during the interview review process?
Kathryn: Typically, a law enforcement officer begins an investigation, then they’ll contact us and we go through what we in house call “a screening process” where we review the case and all of the evidence with the detective. We’ll then let them know what follow up questions and information we’ll need to meet the beyond a reasonable doubt threshold. Sometimes, even after we screen the process, a witness or another victim will reach out to us. We’ll then ask law enforcement to follow up with that individual. We don’t want to facilitate the interviews ourselves because we don’t want to make ourselves a witness. A lot of times the child will tell us something during an interview, and we’ll realize, “oh, there’s four more people we need to talk to”. We then ask the detective to interview those new individuals as well.
Jessica: How does the suppression process work?
Kathryn: In any criminal case, you have to make sure that the evidence that’s going be presented was obtained fairly and not in violation of anybody’s rights. When we’re talking about suppression of defendant and a criminal defendant’s statements, you’re typically going to be referring to violations of the Fifth or Sixth Amendment of the Constitution. Is it their right to remain silent? Is it their right to counsel? If there were violations of those, or if the statement wasn’t given freely or voluntarily, or if you know that there were inducements, threats or promises made in order to get the person to give the statement, it can be suppressed. In other words, if the court finds that Miranda was violated.
If an individual is in the custody of law enforcement and is being interviewed by the police and they don’t think they’re free to leave; they have to be advised of those rights. If they’re not advised of their rights, their statement can be suppressed. When a statement is suppressed, that means we can’t use it in our case. When we are doing a trial, we could still use part of their statement, even if Miranda was violated, if the statement was knowingly and voluntarily given (although not during the prosecutor’s case in chief). For instance, if the defendant takes the stand and ends up saying something completely different than what he told law enforcement. Although I couldn’t use his statement in my case in chief, I can impeach him and say “wait a second… That’s not what you said.” For that I have to show that the statement was freely and voluntarily given; so there were no inducements, threats or promises made to get the suspect to say whatever they said.
Jessica: What is the review process for other articles of evidence that aren’t interviews? Also, what is your role during the actual court hearing?
As a prosecutor, we have to review every piece of evidence because we make the ultimate decisions regarding which crimes are going to be charged. Also, we consider how the case is going to trial. So, we have to review everything: surveillance videos, ring camera videos, cell phone data, traffic cameras, any evidence collected from search warrants, etc.
We are also ethically required to provide every piece of evidence we have to the defense. The prosecutor has to prove that the crime occurred, and the person charged is the one who committed the crime. The police are charged with collecting all the bits of evidence to prove that “John Doe” is the one who committed it.
Law enforcement will then bring the evidence to a prosecutor, like me, and then I’ll review it to make the charging determination. I have to consider if I think the evidence is enough to sustain a charge. Whenever I feel there is enough evidence, I’ll charge the suspect and prepare to take them to trial. Once I make the charging decisions, the case for all intents and purposes is ours. It’s not the detectives anymore. I prepare the case for motions and hearings regarding any evidence which should be suppressed, or I try and bring in additional evidence. Those are my roles.
Meanwhile, the defendant has a defense attorney, and their role is to try to suppress “bad evidence” and bring in what they consider “good evidence”. The motions and hearings before trial are all done outside the presence of a jury.
There are legal standards for almost everything. We argue those legal standards with the judge. For a video recorded statement of the suspect, it’s up to me to tell the judge why it meets the totality of the circumstances to be admitted and why I can play it for a jury. The defense attorney is going to try to say, “Hey, judge, it violates this condition, this condition, this condition so you should not allow it into the trial.” We’ll do those (hearings) before we get to trial, in an ideal world., Once we start the trial, we should all know what evidence we’ll be able to bring in or not bring in, outside of how people answer questions or don’t answer questions on the stand.
That’s the behind the scenes work in criminal law that never gets shown in movies or TV shows. There’s so much work that happens before you ever walk in to actually do the trial.
Jessica: You’ve been doing trials virtually since COVID?
Kathryn: We don’t do trials virtually because there’s a lot of legal issues that could be violated by a virtual trial. A criminal defendant has the right to confront their witnesses, which can be difficult over Zoom. When the trial is over, the jury is instructed that they’re the sole judge of a witness’s credibility – they can choose to believe all, part, or none of witness’s testimony based on how that juror testifies. The Jury judges the credibility. It gets really hard to judge a witness’s credibility when it’s over a TV screen and you’re not able to see their body language, how they interact with other people, their facial expressions and things like that. There’s also an issue with regard to identification. In a trial, the job of the government is to show that the person we’ve put on trial is the one who committed the crime. We typically have to have a witness there to identify them which can be difficult through a screen.
In the jurisdiction I work in, we have a very large immigration population. Many of our cases have required translators and interpreters which is even more difficult when you have people on screens who aren’t in the same room and may not realize that the interpreter is still trying to interpret what we said last to a defendant or a witness. As a result, we can end up missing pieces of evidence, and it’s important for the defendant to hear and understand everything that’s being said. They need to be able to participate in the trial against them. So, we’re not doing trials, but we are doing motion hearings.
Jessica: Do you have issues with social distancing and max capacity and masks during a trial?
Kathryn: Post COVID, we’ve had five weeks of trial that we were allowed to have jury trials with jurors coming into the courthouse. We just got shut down again and we actually had to reconfigure the courtroom. As you see in TV and movies, you’ve got the jury box like with the “12 Angry Men”. Well, clearly that’s not socially distanced so when we resume in person trials again, they’ll be spread out throughout the entire courtroom so that they maintain proper social distancing. Everybody has to wear a mask in the courtroom. So, we have to make sure that we can still speak clearly and distinctly through the mask
Jessica: How can you tell if someone is lying if they’re wearing a mask?
Kathryn: The courts where we are have ordered clear masks. They wear those masks while they’re testifying. There’s also Plexi glass around the witness box. The jurors don’t have to judge our (attorneys) facial expressions. We should try not to have facial expressions during trial anyway. So, everybody still has to wear a mask. Think about your line of work with digital recording, we have to make sure our recording systems can pick up our words so there’s a complete record. It’s a lot harder to distinguish words when you’re talking behind something.
We’ve also updated technology in the courtrooms. Before COVID, if we wanted to argue about being able to ask a question or admit a picture, we would ask, or the judge would have us (attorneys) approach the bench. We’d go up to where the judge is sitting and they’d turn on white noise (which sounds like static in the courtroom) while we argue quietly so the jury can’t hear our arguments because the judge has to make a ruling. But now, in the world of COVID, we can’t get close to the judge, so we all have headsets and speak quietly into them. It’s like a closed recording system between the judge, defense attorney and the state.