Attaching Double Jeopardy, Forensic Artists, and that Bloodhound Story

- This week on the Writer's Detective Bureau, attaching double jeopardy, forensic artists, and that bloodhound story. (suspenseful music) I'm Adam Richardson. And this is the Writer's Detective Bureau. Welcome episode 106 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional-quality crime-related fiction. And this week I'm answering your questions about if and when double jeopardy attaches to an investigation, forensic artists, search patterns, and

that bloodhound story I wanted to tell you long ago. But first let me welcome you back to the Bureau. I gotta tell you, the last few weeks have been absolutely crazy with work. So I am excited to finally be back behind the microphone. And in that time, I also got my second Moderna shot, which, starting the evening after I got the second shot, was like getting hit with

the flu stick for 24 hours. But then it just magically went away. So while I did have the chills, a low grade fever, and night sweats in that first 24 hours after getting the second shot, it was weird not to have the head cold or stomach bug feeling that we normally get. And it was even weirder to wake up a day later with no symptoms whatsoever. I kind

of felt like I had a firmware upgrade and that 24 hour downtime was like when my iPhone takes an hour to reset after updating to the latest OS. Anyway, I am very thankful for getting the chance to be fully vaccinated now, being back to answering your questions, and thankful that you're here listening. So let's get right to the questions right now. (suspenseful music) Ryan Elder brings us our

first set of questions. Ryan writes, "Happy late New Year." Sorry. It is March by the time I got to this, Ryan. "And I hope your podcast is doing well." Hey, it's better now, now that we're back up and answering your questions. All right. So Ryan goes on. "Thank you for your advice in the past again. And it's been a great help in my script writing. I have a

question about how probable cause evidence works. Let's say the police have enough evidence and probable cause to arrest a suspect for a crime. But after the arrest is made, the prosecutor or judge finds that there's not enough evidence it turns out based on some rebuttal evidence introduced by the suspect's lawyer. As a result, either the prosecutor has to drop the charges or the judge has to dismiss the

case. After the suspect goes free, would the evidence for probable cause still be able to be legally used to follow the suspect around and keep surveillance or tabs on him? Or would the police legally have to get all new probable cause now as a result of the first arrest and charge attempt being or dismissed? And would they not be allowed to follow him around at all now? I

hope that makes enough sense to answer the question or give me any advice on it. Thank you very much. As always, you're a great help. Thanks." Thank you so much, Ryan. I apologize for the delay and, as always, great questions. And it really boils down to one key question that we need to answer. And bear in mind that I am not a lawyer, but this is based off

of my best understanding and limited research that I did to answer this question. So that question is when does double jeopardy attach? Way back in one of my early episodes, I think it was episode 24. I talked about the concept of double jeopardy, which stems from the part of the Fifth Amendment that says, "No person shall be subject for the same offense to be twice put in jeopardy

of life or limb." I know I've talked several times about the whole federal and state prosecutions thing, the concept of dual sovereignty, before. And that is not what we're talking about here, right? We're talking about one set of circumstances or a crime being re-investigated by the same detectives in the same criminal justice system. So at what point in an investigation turned prosecution do we pass the point of

no return on getting a second at bat? That is the main question we need to figure out, right? So before we answer that, let's talk about the prosecutorial steps. Now that's a mouthful. A criminal case goes through from the arrest to the point of turning it over to a jury for deliberation. In your scenario, Ryan, we start with your detectives arresting the suspect based upon probable cause. So

he's booked in jail and may or may not be released on his own recognizance or on bail or bail bond. At some point, whether that's within 48 hours if he isn't released from jail or bail, or within a few weeks, if he's cited out or bailed out, he will appear in court for his arraignment. Some jurisdictions will have a probable cause hearing with a judge before the arraignment.

Others will submit probable cause statement paperwork to the jail for a judge to review. But in either case, this is the first time the judge reviews the probable cause for the arrest when it's an on view arrest, meaning the arrest was made without an arrest warrant. So assuming the police had sufficient probable cause, sufficient articulable facts to show it probable that this defendant is responsible for committing the

crimes that he's charged with. That's what I mean by probable cause. Then everything is going forward as planned. Which means the arraignment. So if your guy didn't bail out or get released on OR, he will appear before a judge within 48 hours or 48 court hours. If it's a three-day weekend, it's gonna be more than 48 actual hours. Okay, so arraignment is where your suspect is going to

be formally charged. Meaning he's going to be advised of all of the charges against him. And if it hasn't happened yet, he'll get an opportunity to get an attorney assigned to him. And then lastly, he'll enter a plea as to his guilt. So let's say your guy's assigned a public defender because he can't afford his own private attorney. And in the five minutes he has to talk to

the public defender attending the arraignment court that morning, he's advised by his new attorney to plead not guilty. The next hearing is a preliminary hearing. The purpose of a preliminary hearing is for the prosecution to prove to the court that there is sufficient evidence to proceed to a jury trial. Remember, to get a conviction at trial, the prosecution needs to prove a lot more than probable cause. The

trial isn't how probable it is that the guy committed the crime. The trial is to prove beyond a reasonable doubt that this is the guy that committed the crime. There's a big difference in standards of proof. So if the judge finds that there is sufficient evidence to go forward at trial, meaning the prosecution is well on their way to meeting that beyond a reasonable doubt standard, then the

defendant will be held to answer. And a date for the jury trial will be set. There's gonna be like readiness and settlement hearings and all these other kinds of hearings. But we're talking about the main key milestones in this case here. If the judge finds that there is insufficient evidence to go to trial, the charges are then dropped, which brings us to double jeopardy. Well, almost. Before we

talk about that, one more thing about prelims. The defense doesn't provide any kind of evidence at this stage. If we think of it like a card game, the prosecution has to show their hand. Well, the most compelling cards in their hand anyway, right? But the defense doesn't show any cards. They get to see what they're up against. They get to cross examine whatever witnesses the prosecution puts up

on the stand during the prelim. But they aren't offering evidence of their own, nor are they calling witnesses or providing evidence as a rebuttal to what was said. All of that happens at the jury trial. And I mention it because you referenced it, Ryan, in your question. Okay, so the big question then is when does double jeopardy actually attach? There are a few different instances when it does,

but in your scenario, Ryan, it attached when a jury is sworn in or impaneled. So if the case is dropped any time before a jury trial starts, then the double jeopardy has not attached. So if the case is dropped anytime before a jury trial starts, then double jeopardy has not attached. So let's say the judge finds that there's insufficient evidence at prelim and drops the case. The detectives

can continue working their investigation, picking up right where they left off, using their original evidence and probable cause. But if we get to a jury trial and the potential jury members through the voir dire process, which is the screening and selection process of seating all of the jurors. Once that jury is selected and sworn in, double jeopardy attaches. Now, if there's some sort of mistrial or the judge

concludes the trial before the facts of the case are decided, then there's a chance the prosecution may get a retrial. But for the most part, once a jury trial starts, if the defense provides that rebuttal evidence that you mentioned in your question that shoots a hole in the prosecution's ship, the case is sunk. And the detectives cannot investigate him for that crime or more specifically that set of

circumstances again. If the prosecution and the detectives have done a good job with the investigation, they should have anticipated whatever moves the defense plans to use to tear apart their case. So barring any dramatic Perry Mason abracadabra stuff, that rebuttal evidence shouldn't be a surprise. Perry Mason, man, did I just date myself there or what? Okay, for the record Perry Mason was in reruns when I was a

kid. Okay, so how would the prosecution handle that crippling bit of rebuttal evidence? The prosecutor would have her chance to explain what she thinks the jury should make of it during her closing argument. And the defense will explain just how important that piece of evidence is. And after that, the jury will go into deliberations and decide whom to believe. (suspenseful music) Real quick. This episode was made possible

by Gold Shield patrons, Debra Dunbar from www.DebraDunbar.com, CC Jameson from www.CCJameson.com, Larry Keeton, Vicki Tharp of www.VickiTharp.com, Chrysann, Larry Darter, Natalie Barrelli, Craig Kingsman of www.CraigKingsman.com, Lynn Vitale, Marco Carocari of www.MarcoCarocari.com, Terry Swann, Rob Kerns of Knightsfall Press, Chris A. Moody of www.ChrisAMoody.com, and Mariah Stone of www.MariahStone.com for their support. Along with my Silver Cufflink and Coffee Club patrons. You can find links to all of the patrons

supporting this episode in the show notes at www.writers detective.com/106. To learn more about using Patreon to grow your author business or to support this podcast, Check out www.writersdetective.com/Patreon P-A-T-R-E-O-N. (suspenseful music) Our next question comes from Lori Sibley. She writes, "My question is about forensic artists and their role at a police station. Are forensic artists employed full-time or is it a freelance job? What are cops' perception of forensic

artists and forensic sketches? How useful is a sketch and when are they done? Are they for cops to use or the news stations to show to the general public? Do forensic artists spend most of their time on sketches or on reconstructing faces from skeletons? I'd appreciate any and all information you have. Thanks." You bet, Lori. Let's start with the any and all information I have part, which is

to refer you to some experts, namely Lois Gibson, Samantha Steinberg, Karen T. Taylor, Marilyn Droz, and the IAI. I will link to all of their relevant places on the interwebs in this episode's show notes page, which you can find at www.writersdetective.com/106. All right, Lois Gibson is a 2017 Guinness book world record holder for the most identifications by a forensic artist. Lois works for the Houston Police Department in

Texas and is the author of "Forensic Art Essentials: A Manual for Law Enforcement Artists," and is also co-author of the true crime book "Faces Of Evil: Kidnappers, Murderers, Rapists and the Forensic Artist Who Puts Them Behind Bars." Samantha Steinberg is a Miami-Dade Police Department forensic artist in Florida, and the creator of Steinberg's Facial Identification Catalog and Steinberg's Ethnicities Catalog. These are catalogs of facial features that help artists

accurately render faces. Karen T. Taylor was a forensic art instructor for over 20 years at the FBI Academy in Quantico, Virginia. And her consulting work has been so prolific that the show CSI created a forensic artist character based on Taylor. And her artwork and even her hands have appeared on various incarnations of the show. And Marilyn Droz is another forensic artist that has contracts with agencies in Los

Angeles and Orange Counties here in Southern California. And she does this as a freelance forensic artist. And the last one on the list, the IAI, is the International Association for Identification which you can find at www.theiai.org. So just note that the word the is part of the URL. I feel like this is "Who's on First?" episode. Okay, so the website is literally www.theiai.org. The IAI actually covers all

sorts of identification certifications, like bloodstain patterns, footwear, fingerprints, and so on. But they have a specific forensic art certification. And I will also link to the IAI page on forensic art in the show notes. Which, again, www.writersdetective.com/106. Because this page talks about the educational guidelines and certification requirements for IAI certification as a forensic artist. As well as a bunch of other great links for you to research. One

thing I did notice, Lori, is that many of the forensic artists listed on various committees or in acknowledgements are or were detectives, in addition to becoming forensic artists. Some of them promoted up the chain throughout their career, but maintain their skills and abilities as forensic artists. A few like, Lois Gibson and Samantha Steinberg. seem to work as full-time forensic artists for a specific police department. But it's been

my experience that there are very few full-time employees of police departments around the country that work as forensic artists. And based on some of their write-ups, they offer their services to the surrounding police agencies as well. Since I don't know any of these forensic artists myself, I don't wanna speak as if I know their stories. But many are freelance. Some were freelance before they managed to get a

full-time position with a police agency. Which I would guess was a result of great results as a freelancer. Convincing someone at the police department to create a full-time or part-time position for them as a forensic artist. I can't say that I've ever seen an open job listing for a forensic artist like I do for police recruits or lateral officer vacancies. So I really think it comes down to

being great at what you do. And then the police department realizing the value that they have with this freelancer and then creating a position for them. But I might be wrong. My personal experience has been having a tech from my CSI unit meet with a witness to create a composite using a computer software program. Similar to the facial features catalog created by Samantha Steinberg. While this clip-art-like computer

software method certainly results in a composite face to use for a bulletin, it lacks the expertise that forensic artists offer an investigation. I believe that the forensic artist's skill in drawing is only half. Nom scratch that, less than half of their total skillset. What forensic artists excel at that no computer program can come close to is knowing how to elicit the details of a subject's appearance from a

witness that says I can't remember anything. Getting the witness or victim to relax, feel safe, building rapport, then asking expertly devised questions that tease out a detail or two. Things that prompt a shard of a memory to start coming more into focus. That is what makes a forensic artist great at her job. Hopefully that answers your question about what we, the detectives, think of forensic artists. The thing

to remember is that the composite doesn't need to be a perfect likeness of the subject. It just needs to resemble the person just enough for someone to look at the composite and think, you know what that kinda looks like so-and-so. And have it weigh on their conscience enough to call us and give us that tip. You never if it's a goose chase or a path to a golden

egg. As for your question about the picture's use, it could be used internally by the police or it could be released to the news media. It's really up to the detectives to decide how they want to use it. Plastering the composite all over the media and saying have you seen this man? Can be really effective in one case. But in another, it might be the one thing you

hold back from the media. We've talked about hold backs in previous episodes of the podcast. So let's say you're chasing a serial killer. And one of his victims survived and was able to work with a forensic artist to create a composite. So the question is, do you wanna go public with it and let the killer know that you know what he looks like? This might lead to him

being identified or it may simply cause him to flee. Or is releasing the composite sketch to the public reveal to the killer that the victim survived? Might that composite put the surviving victims life in more danger? Or will you hold that composite back from public knowledge and use it to vet out the hundreds of leads you have coming in each day? So much of how you use evidence,

especially composite pictures, comes down to strategy and to balancing of what will do the most good. Or lead to the quickest capture of the suspect. Most often it's going to the media with it. But sometimes that can backfire and make the hunt harder. Those are the things your detective characters are going to be weighing. And as a quick story tip, that may not ultimately be the detective's decision.

You may have a media hungry boss, think chief or sheriff that's trying to keep their job or bolster and upcoming election campaign, that decides to run the photo to an eager media via a press conference. When the detectives have reservations about releasing the image or whatever else should be held back. Just a tip at a realistic progressive complication for your story there. Whether the artists spend their time

on sketches or cranial-skeletal reconstructions is a great question. I would guess that it probably depends on a lot of factors. Like what the artist feels is their skillset or preference or what kind of cases they tend to get hired for, if they're freelancers, or assigned to, if they are police employees. If you have a room full of cold cases, and you're a full-time forensic artist for a police

department, I'd imagine you'd spend your days doing reconstruction work. Whether a 2D drawing or a 3D clay modeling during the lulls between active who done it cases. Reconstruction work is very time consuming and meticulous. You're looking at dental records. Obviously examining whatever skeletal remains that the ME or coroner may have. Taking measurements of those remains. Looking at what else may have been found with the body and so

on. That takes a lot longer but I'd guess they have a greater likelihood of accuracy, compared to having just a few hours with a victim or witness to ask questions, sketch, ask more questions, and refine things until they say it looks like the person in question. I think a lot of this is harder than we realize. Think of your absolute favorite celebrity, someone we all know. And imagine

trying to describe them to an artist, to create a realistic version of their face. Now, without looking at the picture of them, just from your mental image, how wide is that celebrities mouth? Are their lips thin or full? Is one fuller than the other? How long is their nose? Is it wide or narrow? Is it crooked? Can you see into their nostrils? Is there a groove between their

eyebrows at the top of their nose? How much space is there between the bottom of their nose and their upper lip? How well could you describe this celebrity? Now imagine describing someone you've never seen before and likely only saw for a few seconds or minutes. It's completely amazing to me what forensic artists are able to accomplish with their composite sketches and facial reconstructions. Especially since so much of

that likeness really comes down, as I mentioned before, to that artist's ability to build rapport and ask great questions. And I'm here to tell you, the ones I just asked are horrible questions. You're gonna end up with a stick figure drawing based on the questions I just asked. This is way outside of my lane as far as any kind of expertise or skillset and my hat is off

to these forensic artists. And one last thing. Remember that the word forensic means applied to law. So a forensic artist is someone that applies art to law. Just like a forensic scientist is someone that applies science to law. I would fully expect forensic artists to be subpoenaed to testify in trials that come about as a result of their composite drawings. I hope this helps, Lori. Don't forget to

check out the show notes page for access to the links I mentioned. And you'll find those at www.writersdetective.com/106. (suspenseful music) And Lori is back with our next question which is going to take us into overtime. I hope you don't mind this being a longer episode than normal. But I think you guys deserve it after that break that was unintentional. So with Lori;s next question, she writes, "In my

novel, I have a scene where the police are searching for a child that's gone missing in a large wooded area. Can you explain how a search works? Are there search pattern grids that should be followed? How are volunteers incorporated into the search? Also I'm not sure what episode it was, but at some point you mentioned that you had a bloodhound story that we should ask about. I'd love

to hear it. Thanks, Lori." Well, you are calling me out, I see. Great job. Yes. I will tell you the bloodhound story. Right after I talk about search patterns. Search patterns are very common and the kind you choose may have to do with how many searches you have and what the terrain is like. Or just what makes the most sense at the time. Grid searches and bike wheel

search models are common, as are parallel track patterns. Some do triangular sector searches, which kind of looks like a windmill or a pinwheel. And even spiral search patterns, which is more common in aviation where you're flying in an ever enlarging spiral than it is when you're searching on the ground. But the basic idea is that you create an imaginary pattern or grid over the area you need to

search. So in your case, Lori, the woods where the child was last seen. The incident commander wants to make sure every area of the grid gets searched. We're trying to be methodical in our search so we don't miss anything. So in a grid search, we'd start by forming a line of searchers. And we'd try to create a relatively equal offset between each person searching. The distance of that

offset depends on what you're looking for and the terrain you're covering. So in the case of a child, the offset might be 10 feet between searchers if it's an open pasture or that large wooded area we're talking about. But if you're looking for evidence, something really small like shell casings from a handgun in that same open pasture or wooded area where there are weeds and gopher holes and

trees, you might have your searchers shoulder to shoulder and using metal detectors. Now the other common method that I just mentioned is the bike wheel model. This is very common when we're searching for small children. Imagine the starting point where the child was last seen as the center or the hub of the bike wheel. Then we create a search boundary or a perimeter where we can place people

for containment, keeping an eye out for that child. And if we continue imagining this like a bicycle wheel, this perimeter would be the rim of the bike wheel, right? And we're trying to search everything from the hub out to the rim. Once that perimeter on the rim is established, we'd break our search teams up into groups and send them out from the hub toward the rim. Like they

were following the lines of the spokes. And they're still gonna be in a line, much like we were talking about with the grid search. You know, shoulder to shoulder or arms length out. But the priority on which lines to follow, those spokes, if you will, in this bike wheel are the ones that are easily traveled like roads or bike paths, sidewalks, that kinda thing. Obviously we can't cover

all 360 degrees this way. At the same time, based on the number of people or dog teams, horse mounted, or ATV-mounted teams, aircraft. All the stuff we would need to do that. But we can start them off in the cardinal directions. So north, south, east, and west, you have a team for each. And then when they hit the rim, they just shift over to an adjacent section to

work their way back to the hub for an area that had yet to be searched. And this keeps going until the entire search area has been checked by one of the teams. Now, as you send your four search teams off in their various directions, you also send teams to the high hazard or high probability areas that you've identified in your search area. High hazard being anything that can

cause immediate injury or death to the child. Like a pond, a pool, a cliff, a highway. And high probability being places the child is likely to gravitate toward. Their favorite park or playground. Their friend's house. Or a place they're fascinated with. If the child is fascinated by bulldozers and dump trucks and there's a new housing tract being built, you'd better believe that that is both high probability and

a high-hazard area. So that should be checked long before one of the sector search teams finally reaches that area in their sector. So I hope that makes sense. As for those sector search teams, typically the pace is very slow in the case of a diligent evidence search. But it may be a walking pace in the search for a child because we're not looking for that itty, tiny, you

know, itty bitty piece of evidence. The idea is that you never wanna go faster than you're able to search your sector. And looking for a kid is much easier than looking for a shell casing. When you're putting together a large-scale search like what you have in your story, Lori, you're certainly going to welcome any volunteers that wanna come help. The first volunteers are usually going to be your

search and rescue teams. They're trained for this kind of thing. And most SAR teams, as we abbreviate and call them, around the country are almost always volunteer. Here in Southern California, we do have full-time SAR teams. But across the country, it is overwhelmingly volunteer. And those are the folks, along with law enforcement, that are going to coordinate this search. And coordination is key. You want to know who's

out there searching, for a variety of reasons, but namely to know where, and when they've searched an area. If the coordinators don't know if or who searched an area, you can waste precious time and resources in searching an area more often than it need be searched. For the search to be productive, it needs to be monitored and measured for progress. Also that accountability prepares you for what may

come into play if the search makes a tragic turn toward being a crime scene and explaining how evidence was discovered or trampled upon. So if you have an army of volunteers, you want to group them with those SAR folks or those sheriff's deputies and police officers that are going to be leading and supervising those groups. Now, about those bloodhounds. And thank you for reminding me to tell this

story. I think it's pretty common knowledge that bloodhounds are the premier dog breed for trailing. The superior number of olfactory receptors in their nose, coupled with those big, long ears that scoop the scent particles right up in their nose and then the wrinkles on their snout, are unsurpassed by any other breed for being able to trail somebody. But I was not prepared for the first time I saw

a bloodhound's capability for myself. Years ago, I was called to the scene of a home invasion robbery in a nicer part of town. It was about 8:00 AM and it turned out the robbery happened the night before. The homeowners had an idea as to who the suspect may have been, but nothing that amounted to probable cause for us to get a search warrant at that point. So I

was assigned to a bloodhound team that had been brought in to search for the suspect. My department has regular police canines, not bloodhounds. Ours are German Shepherds and they're trained for patrol. Some of them are trained to sniff out narcotics and others trained for explosive detection and they are trained for tracking fleeing suspects. So like when a patrol canine tracks a suspect, they're sniffing for the smells of

a disturbance in the path ahead, as well as the scent of the suspect, if we were able to get any kind of scent article. So let's say the suspect runs from the police on a traffic stop and he drops his hat. When the canine handler gets on scene, she'll have her canine partner sniff the hat. And the canine, based on training, will know that this is the scent

he needs to find to get his toy. 'Cause that's the way they work, right? It's all play oriented. So off the canine team goes with officers to provide cover, obviously. But the patrol canine is sniffing for the scent of the bad guy, created by his feet as he ran away. So things like freshly crushed vegetation, freshly stirred up dust from the sidewalk, those kinds of things. That really

plays into the scent that the patrol canine is tracking. Bloodhounds are used for trailing. They are solely focused on the scent that matches the scent article or odor sample they've been provided. In the case of the robbery, the detectives that I was working with had something the suspect had touched during the robbery as a scent article. It's been nearly 20 years since this happened so I can't recall

what the scent article was. But I do remember being lined up along with everyone else that had been in and out of the house, of the crime scene for the bloodhound to sniff in order to exclude us from all of the odors that she smelled in the house and on the scent article. So as soon as the exclusion sniff of us was done, her big, wet bloodhound nose

went straight to the ground and off we went down the driveway. Keep in mind that this was about 10 hours after the suspect fled the scene in a vehicle. We followed that suspect's scent from the residential area into the city, block after city block, turn after turn, for hours. Right up to the carport of an apartment building. I called the case agent and was informed that the dog

just led us to the apartment building of the guy the family suspected of the robbery. That hours-long search by the bloodhound was enough to get over the probable cause hump for a search warrant for the suspect's apartment, where we ultimately found the mask and the weapon that were used. Not long after that, I saw that same bloodhound team work a bank robbery. The scent article was literally the

countertop at the teller station where the bank robber stood when he presented the demand note. Smart bank robber, never gave up the demand note and took it with him when he fled. The bloodhound tracked the suspect who, like the last one, got in a car. Only this one got on the freeway. So what did we do? Our little convoy of police cars jumped on the freeway as well.

And then we turned on our lights and blocked off each off-ramp as we encountered them, allowing the bloodhound to jump out. And then we would wait to see if the bloodhound continued on the freeway or went down the off ramp. We did this for dozens and dozens and dozens of miles. We ended it when it was clear the bank robber fled to Northern California. When the bank robber

was finally identified and captured. Can you guess where he actually lived? Yep. Nor Cal in the San Francisco Bay Area. To say that bloodhounds are amazing at trailing suspects is a complete understatement and I wish we had more access to them. So thank you so much for your questions, Lori. I really appreciate it. Thanks for sticking with me to the end and for listening this week. This show

is powered by your questions. So send them to me by going to www.writersdetective.com/podcast. I would love to answer them on next week's episode. Thanks again for listening. Have a great week, and write well.