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Prosecuting shoplifters: stealing the show.


SHOPLIFTING IS A CRIME OF INTENT. There is no one act or series of acts that a shoplifter does or fails to do that will render him or her guilty automatically. The mere removal of merchandise from a store does not in and of itself constitute theft. For the act to be a theft it is necessary to prove the person intended to steal the goods. It is not against the law to be absentminded, preoccupied, senile, distraught, under the influence of prescription drugs, or incapable of distinguishing right from wrong. Any of the above, if demonstrated to the satisfaction of the court, can mitigate the charge of theft.

Most court cases involving the prosecution of a shoplifter are resolved without requiring the witness--the apprehending loss prevention agent or store employee--to make an appearance in court. The shoplifter enters a plea of guilty, nolo contendere--a plea without admitting guilt but may result in a conviction, or guilty to a lesser offense such as trespassing. Most shoplifters brought to court have pleaded guilty, and consequently few loss prevention agents have had to testify. A guilty plea is obviously the desired result because of the saving of time and effort expended in trial. Inevitably, however, certain cases will go to trial and thus require accurate and comprehensive testimony from witnesses.

Sometimes the accused in the courtroom is a much different person than the one apprehended in the store. When the shoplifting incident occurred the accused might have been unwashed, uncooperative or belligerent, profane, or threatening. When the accused shows up for trial he or she may present himself or herself as a pleasant, well-groomed individual armed with character references.

The witness--the loss prevention agent or other employee who apprehended a shoplifter--who requested prosecution may be entirely sure the person intended to steal and is therefore guilty. But how does he or she convince the court the accused is guilty?

The witness must do this through testimony. Essentially, the testimony must show how the conduct of the accused differed from the conduct of an otherwise reasonable and prudent person under the same circumtances. The witness saw the shoplifter's actions first-hand, but the jury will see those actions only through the witness's description of what happened. And, the witness's version will be rebutted by the shoplifter's version if he or she decides to take the stand and testify in his or her own behalf.

Since the judge and jury were not in the place of the incident, the outcome of the case will be determined by the testimony of the witness. Although what the witness says is of great importance, the way he or she says it may be of greater importance. If the shoplifter is more convincing than the witness, the jury will be persuaded accordingly even though the shoplifter is lying. Uncertainty or confusion on the part of the prosecution's witness will breed doubt, and doubt must be resolved in favor of the accused.

A witness can be made ready for a court appearance in many ways. Prior to the court date, supervisors can explain court procedures to the witness and arrange for a moot court where the flavor of a trial can be produced. Also, actually attending a trial to soak up the atmosphere goes a long way in educating the witness.

A witness's level of professionalism will be indicated by his or her demeanor on the stand and by his or her grasp of the facts pertaining to the case. The following suggestions are designed to assist a witness in making a good impression. A witness should

* be neat and dress conservatively;

* refrain from chewing gum on the witness stand or any time court is in session;

* refrain from talking or visiting with others while court is in session;

* speak clearly and loudly on the witness stand so answers will not need to be repeated;

* testify only to what he or she personally saw;

* not repeat any conversation that took place out of the hearing of the defendant;

* adhere to the facts;

* answer all questions directly in as simple terms as possible and not be overly expansive when a question does not engender an adequate answer;

* refrain from voluntary statements while on the witness stand;

* have questions explained if they are confusing;

* reply politely and directly;

* remain calm under questioning by defense counsel, who are merely testing the memory and credibility of all witnesses;

* withhold answering a question when either the prosecutor or defense counsel objects to it until the court rules; and

* make certain not to appear to have a personal interest in the case.

A witness's uncertainty or confusion during questioning works directly in favor of the defendant. Aggravating the problem of accurately recounting an incident is the length of time since the incident and the myriad of details involved in the incident, such as the number of suspects and the defendant's precise actions. All are potential problems blocking the witness's clear recollection of the incident.

There is one solution to this problem: the witness's complete command of the facts of the case. The way to ensure command of the facts is to create a dependable record. The witness can do this by making the necessary notes during surveillance and immediately after the accused is apprehended.

The accompanying chart, presented in the form of a questionnaire, provides a basis for capturing facts that may be needed later during testimony. At first glance, it may appear to be too lengthy, but it is far better to have unneeded notes than to be unable to give answers to obvious questions. A good defense attorney can make a great many questions seem obvious to a jury.

Also, each time a retailer requests a shoplifter be prosecuted, the prosecutor must review the facts and then issue a criminal complaint or reject the application. The prosecutor bases his or her decision on the facts presented. The more complete the facts presented are the less likely the application for complaint will be denied and the shoplifter will be let go without punishment.

Going through all the actions of surveillance, apprehension, and filing a complaint against a shoplifter and then having the case dismissed or, worse, lost in court because of inaccurate or uncertain testimony from a witness is frustrating. Supervisors should train their loss prevention agents and store personnel and provide them with the necessary procedures so shoplifters are actively and effectively brought to justice.

Roger Griffin, CPP, is vice president of Commercial Service Systems Inc., headquartered in Van Nuys, CA. He is a member of ASIS.
COPYRIGHT 1989 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1989 Gale, Cengage Learning. All rights reserved.

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Author:Griffin, Roger
Publication:Security Management
Date:Mar 1, 1989
Previous Article:Training to take the heat.
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