31
Jan

Why Good Investigators Make Great Apologists

The best apologists think like an investigator. Surely it may help to be a seasoned detective like J. Warner Wallace, but you don’t have to be. It’s not even something you need special training to do. More than a skill, it’s a state of mind. A brief survey of what we do as investigators may help to illustrate. What follows is an 8-Step outline of how professional investigators approach their cases from the reported crime through verdict. I think you’ll be surprised by how this process of presenting a compelling case parallels what Jim calls Christian “case-making.” Appreciating how important decisions are made in the administration of criminal justice may help you guide others in their journey to solving the biggest investigation of all.

Step #1:  LEADS

If crimes weren’t detectable, there would be very little we could do in law enforcement. Sometimes people come to us by reporting crimes and other times it’s committed in our presence. On a slow day, we may have to go looking for it. In any case, when crime occurs, we need to respond to the call. We often hear in law enforcement that “crime never takes a day off” and that “you can’t fight crime from behind a desk.”

Application:  As Christians, we sometimes are approached directly while other times we have to go looking for the chance to share what we know. Either way we’re called to defend the faith whenever called. Christ told no one to defend the faith in isolation from under a bunker. Rather, he explicitly told us to go outward with the message. While we’re all given different gifts and life circumstances, we all are expected to “make disciples.” And you can only make disciples if people are convinced Christianity is true.

Step #2:  INTERVIEWS

J. Warner has talked about this elsewhere so I won’t go into great detail here. In an investigation, interviews are one of the earliest and most important parts of a case. Unlike examining other kinds of evidence, this kind of evidence can be extremely personal especially where the subject has witnesses something traumatic (witness), faces serious consequences (suspect), or lost something precious (victim). It’s a people business.

Interviewing victims and witnesses also provide helpful data that can be used as direct or circumstantial evidence in your case. Suspect interviews are another thing altogether. This is where preparation and  skillful tactics are necessary. The preparation involves knowing the facts while tactics involves being alert to key responses of the subject being interviewed.

Application:  Like criminal investigators, a wise apologist will enter a conversation equipped with the facts, especially that which is of concern to the audience. Apologetics relies on a strategic mental effort just as interrogations do, although the ways of accomplishing this can be different. Nonetheless, the goal is the same. In both cases, the primary objective is to help the person you’re talking to verbally acknowledge the truth of the matter. Often the subject in both interrogations and apologetics will start off resisting your message.

Apologists need to appreciate the sensitive nature of the person they are reaching and the seriousness of the subject matter at hand. Most people aren’t fooled by a cavalier or insincere attitude. If you don’t care, don’t share.

Step #3:  EVIDENCE

The next step in the process is finding and evaluating evidence. Whether it’s a violent crime or white collar fraud, there must be evidence pointing to the truth of what actually happened. Evidence may include witness statements, documents, recorded phone calls, weapons, forensics exam (i.e. fingerprints, DNA, shoe impressions, material samples, photo/audio media, computer data, handwriting), or any other material that provides relevant data on the crime in question.

The investigator’s task is to ensure the evidence presented is: 1) specific – shows a particular criminal code was violated, 2) relevant – points to a suspect who committed the crime, and 3) accessible – secured until and throughout the trial phase.

Application:  There’s also evidence for Christianity. Not all evidence is good evidence however. To use it effectively, we must also refer to the data in a way that’s: 1) specific – to the point we’re trying to make (what’s the “crime” under discussion), 2) relevant – ensure that the evidence adequately supports the case you’re making, 3) accessible – have the citations for each piece of evidence readily available.

Step #4:  PRESENTATION

For a case to move through the justice system, the case must first be accepted for prosecution by the government. I normally meet with a deputy county prosecutor or Assistant United States Attorney in person to explain the case. The prosecutor is my first audience. I give my argument and seek their decision whether or not they think my case is good enough to show a particular individual committed a crime. Sometimes it’s an informal meeting discussed verbally. Otherwise, it’s a written report presented usually with diagrams and attachments explaining case evidence. However it’s done, the case must be “sold” to the prosecutor before going forward.

This phase is where all the data and methodology come together to argue there’s sufficient grounds for the suspect’s guilt. The minimum standard is probable cause. A definition isn’t found in the constitution or federal statutes but is described in case law as “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Brinegar v. United States, 338 U.S. 160175 . 1949). Although “probable cause” is all that’s needed for an arrest, the prosecutor  has the trial in mind, so expects me to meet the greater burden of “beyond a reasonable doubt” even at this early stage. Accordingly, the report must be: 1) complete – showing all the case facts (both incriminating and exculpatory) usually in a narrative form with attached exhibits such as photos and supplemental reports, 2) coherent – the argument and supporting evidence must make sense logically, be internally consistent, avoid speculation/opinion/inaccuracies, and be clearly understood by the average reader, 3) relevant – the argument and evidence must relate directly to the criminal violation, and 4) compelling – there must be no other explanation that exceeds the likelihood of the one you’ve proposed. Although your case is initially presented to educated lawyers and judges, you must keep in mind that the ultimate audience from the start is a jury of ordinary people.

Application:  Be prepared to build a case that will be compelling to a broad swath of people. Often apologists share with everybody their favorite case for Christianity which they themselves found the most convincing. While it’s great to share what worked for you, whatever it was that had an impact on you may not always resonate the same way with everybody else. That’s why we need to present a case that’s 1) complete – covering as many concerns as possible, 2) coherent – making sense, 3) relevant – addressing the concerns of your audience, and 4) compelling – providing a persuasive approach where your audience wants to believe its truthfulness.

Step #5:  INDICTMENT

The next step in the investigator’s quest to justice is the indictment. This process can be accomplished a few different ways but typically involves a determination of probable cause by either a grand jury or preliminary hearing. In either case, a judge or jury weighs the evidence presented in order for the government to make a finding of probable cause. This decision is in confirmation of an arrest already made by agents or in preparation for an arrest warrant to be issued.

The grand jury consists of approximately 35 ordinary citizens (much like a trial jury but with a longer commitment). The session is completely one-sided as there is no defense represented in the grand jury. The prosecutor guides the entire process having witnesses explain why the grand jury should believe the subject of the investigation committed the crime.

A preliminary hearing is much less intense than a full trial would be for the simple reason hearsay is allowed. As in grand jury, this allows a single witness (usually the case agent) to testify to statements made by multiple other parties. The other significant difference is the standard of proof is “probable cause” which, as described earlier, is considerably easier to show than “beyond a reasonable doubt.”

Application:  It’s a good thing our justice system has a way of confirming the standard of proof made by an individual law enforcement officer. Likewise, apologists should present their case as though they’ll eventually be cross-examined as well. It’s one thing to make your case to a single person but another thing altogether making your case to a group of people or under direct examination by experts. Don’t take advantage of the ignorance of someone just because they aren’t as informed on religious matters but rather speak to them as though all your statements will later be checked for accuracy.

Step #6:  DISCOVERY

Discovery is when everything presented to the prosecutor is turned over to the defense. Absolutely everything must be disclosed whether it helps or hurts your case. This is one of the lesser known facts of the criminal system but which is among the most important. No one likes evidence that hurts their case. Though it may be tempting, the consequences for omitting exculpatory information are severe. Not only does a material omission often lead to the dismissed charges, but may even include disciplinary action that could permanently damage an investigator’s career. More than that, it’s unethical if done intentionally. This process ensures a fair assessment of the evidence as peer reviewed scholarship does in academia. This process is especially important since the vast majority of cases are decided before they get to trial.

Application:  Be honest in your defense of the faith. It may be tempting to exaggerate a point, but resist the urge. Eventually you will get caught and it’s nearly impossible to regain credibility. Worse yet, you’ve dishonored God in the process. Instead, don’t fear the truth but go wherever it leads. If Christianity is true, no piece of evidence will undermine it no matter how bad it seems. To a fair crowd, acknowledging contrary evidence can actually show that you’re well-informed, honest, and confident about the conclusions you hold.

Step #7:  TRIAL PREP (PROSECUTOR “TO DO” LIST)

The prosecution report is ever evolving with subsequent submissions of additional reports called “supplementals.” Nearly every time I’ve presented my “final” report, there’s always more information that the prosecutor requests me to follow up on. There’s also logistical issues to prepare for. No hearsay testimony is allowed in trial so all witnesses must testify in person. As the trial date nears, the prosecutor typically has a lengthy list of tasks for the case agent. Of first importance, original evidence must be at the ready and witnesses made available. Suppression hearings may arise in attempts at knocking out key pieces of evidence. As this happens, the attorney may call you to either provide more information or testify at the hearing.

At any point right up to the day of trial, a plea deal could be reached. In fact, most cases (all of my cases – about 100 – over the past nine years) have been adjudicated prior to the trial phase. Typically the defendant weighs the risk and accepts a plea before going to trial. In other words, the court makes a decision (conviction) before all the evidence is presented at trial. This doesn’t apply to murder cases and is rare when the plea deal is a long prison sentence. It’s interesting to note that this means a vast majority of defendants are convicted when the only official finding of guilt (indictment) was based on probable cause.

Application:  If probable cause is enough to send people to prison, it’s enough for just about anything. Often skeptics begin the conversation about religious issues seeking “proof” or a “scientific test.” These standards are unreasonable and unnecessary. Not only do they exceed the need for criminal conviction in most cases, they are also hardly ever employed in the skeptic’s own decision making process in everyday life. More importantly, we must maintain the standard of proof consistent with what’s being examined. For instance, if we are looking at historical accounts, we should employ the standards modern historians use. It would be absurd to seek historical verification in a lab. It’s the wrong tool for the job. As Greg Koukl cleverly cautions, we’re not to “weigh a chicken with a yard stick.”

The other part of the problem is that these unreasonably high standards can be more a reflection of the subject than the object under scrutiny. The skeptic who asks for “proof” is often not really interested in hearing it. Any evidence you provide won’t be enough to meet their own subjective standard.

I was once in a public debate on a stage in Costa Mesa, California with an atheist who complained that God unfairly waits to “show me he really exists until after I’m already in hell.” For this skeptic only first hand observation would convince him. The implication is all other evidence is insufficient for making a decision, such as witness testimony. However, he evidently believed the debate was going to start at 7 p.m. when someone else told him that.

Step #8:  TRIAL

As explained above, very few cases make it here. Those that do usually have severe sentencing potential, stubborn defendants refusing to pay for their crime, or in extremely rare cases – innocent defendants. While all trials are presided by a judge, not all of them are decided by a jury. States have different rules on which cases can be ruled by a judge alone. Even with jury trials, states vary on whether a jury must vote unanimously or if a majority of votes can carry a verdict.

The trial is a painstakingly slow process where both sides present their entire case for all to see. The judge and jurors are seeing it unfold for the first time, but for both the prosecution and defense, there’s really nothing new. Unlike some famous courtroom movie scenes, there’s little that surprises the attorneys in trial. The discovery process outlined earlier ensures that both parties have all the evidence in advance. Both parties have a witness list and the opportunity to interview them beforehand as well. The trial is basically a way to show the court what both sides already know.

The prosecution is faced with a disadvantage at trial they haven’t had in any hearing prior to this point. The challenge is no longer to show that the defendant’s probably not innocent, but now has the added burden of convincing the court there’s not even a “reasonable doubt” of innocence. This is a critical difference. It’s not enough for the jurors to believe the defendant committed the crime. They must also lack belief in all other reasonable alternate explanations. This is why we hear about cases where the defendant’s guilt seems so certain yet a jury acquits. Mere belief isn’t enough to convict. There must also be a total absence of all other possibilities the jurors find to be reasonable.

Once the verdict is read, the case can never be heard again. The constitutional right against double jeopardy guards all citizens against this. Even the appellate process doesn’t revisit all aspects of the trial but only very specific legal matters raised in the appeal motion. In other words, the trial is the government’s last chance at “case making.” And it’s the court’s last chance to decide on the truth of what was presented.

Application: A practical side of human nature can be seen in the analogy of a crime trial. Just as courts require a more compelling case the longer a case goes on, people who have postponed making a decision about Jesus may take more convincing also. In the justice system, the reason is to ensure innocent people aren’t unjustly convicted at the expense of letting the guilty free. Clearly the reason is different for the unbeliever who doesn’t have this concern. The unsaved person who’s gone so long unbelieving needs more convincing because they have lived apart from God for so long. That’s why it’s all the more important to share with them sooner than later and with everything you’ve got. But when you’ve already given them your best case for Christianity, there’s little more you can do. Your duty of sharing the gospel message to the best of your ability in representation of our Lord is all that you’re asked to do. It’s up to the Lord to work in the life of the unbeliever and to know whether or not this person will ever choose to accept the truth and seek God.

 

Posted by Dan Grossenbach

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