Five Points To Obtain Admissibility of Tracking Evidence
© by R.S. Eden
In order for canine evidence to be accepted In any K9 related case the following five points need to be covered to ensure acceptance by the courts.
1. Handler is qualified by training and experience to handle the dog, and interpret his actions.
2. The dog is adequately trained to track human scent.
3. Experience shows the dog has been a reliable tracker of human scent. (This is where the value of a dog log is invaluable.)
4. The dog was placed on the track where circumstances indicated the suspect had been.
5. The trail left by the suspect was not so stale and contaminated so as to interfere with the accurate ability of the dog to track.
It is advisable for the handler to have a resume listing his training, years of experience, list of books read, courses and seminars attended. When you attend court have a booklet of your resume prepared in multiple copies so that you may distribute one to the prosecutor, defense attorney, and the judge if required. If you are at a jury trial, ensure you have a booklet prepared for the foreman of the jury as well. By having a professionally prepared resume in multiple copies prepared for court purposes, you show your expertise and your efficiency to the courts.
In preparation for court, review any tapes that you may have of the occurrence. Do not take your dog to court unless directed by a judge to do so. Any demonstrations need to be performed on neutral territory. Ensure when you are putting your case together that you have enough evidence to corroborate your case. Do not go to court with a weak case even if your dog was successful. You run the danger of losing the case and the possibility of creating bad case law. In the long run that result can hurt more than letting one case go. A dog track is often probable cause to arrest, but not enough to convict.
When giving your evidence, maintain your objectivity and professionalism. Avoid any appearance of accusation through your testimony. For example, we often refer to the scent that emanates off of a suspect as "fear scent". Although this is basically true, you must try to avoid using that terminology. It is considered an opinion of the officer by most courts, and in most cases is frowned upon by judges. I use the term "enhanced scent" whenever I testify. It is more professional and shows your objectivity to the court. This greatly increases the credibility of your evidence. This is not to say that you cannot then expound on what enhanced scent may be caused by, and how it is produced if prompted by the prosecutor or asked by counsel.
Remember that your evidence is not that the person you caught with the dog is responsible for the crime committed, unless you saw the crime take place and can identify the accused. You can say however, that you did a track with your dog that resulted in the successful apprehension of the accused, and that you arrested the accused based on the information provided to you by attending officers or witnesses. It is up to the courts to put together the continuity of evidence that led up to your track. This again will show your objectivity and credibility.
Do not allow yourself to be qualified as an expert by defense counsel without going through your qualifications. Ensure the prosecutor still goes through the process of qualifying you, particularly on a jury trial. This allows you the opportunity to impress upon the judge and jurors the level of your expertise. The end result is that your evidence will likely be given more weight.
If pressured by defense attorneys, never get defensive about your dog. Be positive and maintain cool, professional composure. Ensure that you do not trap yourself inadvertently. For example, there are alarm companies that set up clients properties so that when an alarm is triggered, the alarm company is able to listen in at the clients property. These occurrences are often taped. When you attend the call, and then put your dog out to search the building, keep in mind that your actions may be monitored and taped. A good example of this is an attorney who asked the officer if he yelled a warning into the school he was searching prior to releasing his dog into the building. The officer was adamant that he had given three verbal warnings prior to releasing his dog on the search. Unknown to the officer, the defense attorney had subpoenaed the alarm company's tape of the incident, and it became quite clear that no warning was given. Needless to say, this type of situation destroys any credibility that the officer may have had.
Have an established list of questions in a handout that you can give to your prosecutor prior to court time. The questions on this list will establish all the issues required to admit the five major points. Here is a good example of predicate questions, which establish the groundwork for your evidence.
QUESTIONNAIRE TO ESTABLISH EXPERT EVIDENCE IN TRACKING
1. State your full name and rank.
2. What is your occupation and who is your employer?
3. Length of present employment?
4. What is your current assignment and length of time in that assignment?
5. What other assignments have you had during your career?
6. What formal training have you had as a dog handler?
7. Where did you train, for how long, and what did it entail?
8. What additional training have you had? (ie) Seminars, conferences, courses, etc.
9. What continual training programs are you on?
10. What associations do you belong to?
11. How many K9 partners have you had?
12. What breed of dog do you use?
13. What is your K9 partners name?
14. How long have you been together?
15. What duties do you perform?
16. Are you familiar with your dogs sense of smell?
18. Explain your dogs olfactory capabilities.
19. Explain scent.
20. Is a persons scent individual and unique?
21. What does the phrase, "reading your dog" mean?
22. What percentage of dog applications involve tracking?
23. How many tracks have you done with your dog?
24. Is your dog trained to discriminate between scents of different people?
25. Do you train in various weather and terrain conditions?
26. Does a person always give off the same scent?
27. Explain the difference between air scent and ground scent.
28. How much street experience does your dog have?
29. How many arrests have you made as a result of successful tracks by your dog?
30. How reliable is your dog on tracks?
31. What time delays has your dog been worked to successful conclusions?
32. On (date of offense) did you use your dog to track?
33. What circumstances brought you to the incident?
34. From what point did you start your track, and why?
35. Did you come to a successful conclusion to the track?
Once you have qualified yourself with the predicate questions, go into the details of your tracking application and explain what your conclusions are as a result of the track.
Note: More advanced information on this subject during sessions instructed at the International Police K9 Conferences held annually in various locations throughout North America.