Building The Defense Through Criminal Investigations
By: Christopher L. Tritico and Ron S. Rainey
It really does not matter what the charge is, investigation is essential in every criminal case. This is true even if you think the client will ultimately plead guilty. A lawyer cannot effectively advise a client if he does not possess a complete understanding of the law and the facts1. This paper will discuss the basic aspects to a successful investigation. There are an infinite number of ways to prepare your case successfully. These are strategies that have worked for me.
- Elements of a Thorough Investigation2
- Learn the facts. Read the state’s file. That may sound elementary, and it is. However, it is a free look at the state’s case – do not pass it up. When you are reviewing the state’s file, write down everything. Some prosecutors still take the position that you cannot write it down verbatim. There is a simple solution to this problem. Do not take your notes in front of the prosecutor. Take the file in the back or sit in jury box. Then you can take your notes uninterrupted. Your client will benefit from your exhaustive note- taking.
- Discuss the facts with your client. There is a strategic reason that this section comes after reading the state’s file. It is best to discuss the facts fully with the client in light of what you learn from the state’s file. You leave all your options open this way. In your discussion with your client there are important matters to be detailed:
Have the client give you the names and all other information they have about any eyewitnesses. Have the client tell you what he expects they will say. Get as much information as you can before you give it to your private investigator.
- Fact witnesses:
Discuss with your client who may be fact witnesses who are not eyewitnesses. Same drill here- find out what the client expects them to say and all of their contact information.
- Expert witnesses:
Identify what type of experts you will need, if any. Doing this early in the case helps you be a better prepared lawyer.
- Hostile witnesses:
These you get from the state’s file. Get all of the information available about them. Generally, you get not only what they have to say about the case, also their full name and date of birth, home address and phone number and work phone.
- Character witnesses:
Have your client make you a list of character witnesses with name, address and phone number and a summary of how they know the client and what they are expected to say. The client will have a tendency to give you the phone book on this. I tell them up front, “if I call any character witness, it will not likely be more than three. So pick your best ones.” It is a waste of time in most cases to call a bunch of character witnesses. The rules of evidence make character evidence boring at best. In a normal case a few will do.With this backdrop you should now have a fairly complete picture of the case. I say a fairly complete picture because at this point it is too early to know everything. However, what you are setting up is a place to start.
- Selecting the Investigator and Working with Them.
- There are a multitude of investigators out there. The best way to find one is by word of mouth. I think discussing the selection with other lawyers and getting their take on investigators cannot be replaced as the best tool. Investigators are like anyone else. Some are great. Some are just in it to make a buck.When you hire a private investigator that you have not worked with before, be careful not to send him/her out without specific instructions. You can strain an expense budget very quickly if you allow the investigator to roam without instruction. After you have a good working relationship with the investigator, you can then allow them to work with less hands-on instruction. However, one way to quickly get sideways with your client is to spend all of their precious money on frivolous investigation.
- Have a plan.
- Take the information that you gathered above and make a working plan on what needs to be done first. Most clients do not have an endless supply of funds to spend on investigation. That is why a clear plan on what needs to be done first is so important. By ranking the importance you can give the investigator a clear and unambiguous list of matters to work on. There is no way to tell you what that order is because each case is different. However, interviewing fact witnesses and eyewitnesses will always come before character witnesses. In fact, unless I have unlimited resources, I do not let my investigator interview the character witnesses. I do it or my associate does it.
- When putting your investigative plan together, provide the investigator with as much information as possible. List the witnesses in the order in which you want them interviewed. Give him the full name and all available contact information; this saves money. Give him a typed-up version of your notes from the state’s file about what the witness has to say. In some cases it is good to set up a meeting with the investigator, the client, and yourself so that the investigator can get up to speed quickly. I used to allow my investigator to call the client directly or vice versa, however, I have found that the client spends all of his money talking to the investigator and then gets upset when the money is gone. It is better for you to be the relay person so that you can control the expenses.
- A good investigative plan will have at least the following elements:
- Conference with investigator and client;
- Witness interviews;
- Crime scene viewing
- View evidence in possession of the State
- Photographs and/or drawings
- Expert witnesses
- Other matters. This includes the items that are case- specific. In some cases you may need bar records, utility records, cell phone records. Be creative.
- Weekly status meetings with investigator
- Always bear in mind how much your client can afford when making assignments. Your investigative plan is the same regardless of how much money you have to spend. What changes is who is doing the investigating. The courts are increasingly more stingy with funds for investigation. In Harris County court appointed cases currently you get $250.00 for a misdemeanor and $750.00 for a felony. That is a woefully small amount of money when you are charged with the responsibility of providing a zealous defense.3
- Locating and Interviewing Witnesses:
- Most of this task should be performed by your investigator. In those cases where your client runs out of money or you have a court- appointed case, you may find yourself interviewing witnesses yourself. So how do you locate the witness? Well, a lot of the work is done for you by the person writing the offense report. In there, you will find the contact information for the people that they interviewed. Never take for granted that the police put in an accurate statement of what the person has to say. Many of the hostile witnesses will not speak with you. However, sometimes they surprise you and have something to say. In all of my 16+ years practicing and my 5 years as an investigator, I had the luxury of one, yes one, police officer grant an interview. In the quest to locate witnesses, your client should be of great value – he was after all there. Most cases are not scripts for a Perry Mason episode. Ask the client who knows what, and call them.
- Visiting the scene can be of great importance in locating witnesses. If it is in a neighborhood, knock on doors and start asking questions. If it is in a business area, go to the other businesses. You will be surprised who you can find that the police did not. The police historically do not do a great deal of investigating. They talk to whomever is right there and they are done. You can make the difference by rooting out those who have not been contacted.
- When you have names and no other information, you now have access to many tools that we did not have before. The internet is a great resource for those who know how to use it. If you are like me and are only good at opening email, let your investigator do this. In the pre- internet days, we went to the county administration building and ran voters’ registration, real property, marriage license and other searches trying to find information that will help locate the witnesses.
- School records are very helpful in cases that involve children. There is a wealth of information located in them. In the school file you will find discipline records, healthcare providers, and the location information of family members. Always, I mean always, subpoena the school records of the children involved.
- In many cases you are forced to deal with the medical profession. Doctors hate lawyers. We can’t change that. Treating physicians will not speak to you without a release. The complainant is not likely to give you a release. So use the power of the subpoena to get the records. These records are helpful to give to your own expert.
- To tape or not to tape? This is a difficult area. The State Bar takes the position that it is unethical for a lawyer to instruct anyone to tape record a conversation. I view that to include my investigator. As a result I do not instruct anyone to tape record their conversations. As you know it is not illegal in Texas to tape record a conversation that you are a party to. However, as a lawyer I do not tape anyone without telling them first.
- There are witnesses that you may want to go interview with your investigator. It is a case by case decision.
- Use the media to your advantage. In high profile cases you can find good information out from the media. Talk to the reporters. You may have to give them something in exchange; however, this can be done without hurting your case.
- Viewing the crime scene.
- This can be very helpful. Here you are not only looking to see where the events took place, but for evidence. Examine the scene based on your case. For instance in a DWI what did the scene of the field sobriety test look like. Was it level and free of rocks or other things that could affect you client’s balance? Was it so close to the road that it calls into question the test? In other cases you may be looking for evidence that the police did not find.
- Forensics at the crime scene is important also. If your case involves an accident, you need to get a reconstruction expert quickly. Once it rains you may not be able to do the reconstruction. Furthermore, photographing should be done quickly at a scene that is outside.
- When viewing the scene if you find evidence make sure you photograph where you found it completely before you move it. After you have it completely documented, if you decide to preserve it, put it in something to keep it safe and make sure you can prove the chain of custody. I let my investigator take control of the evidence so he can testify that he picked it up and either held onto it for trial or took it to the expert for analysis.
- Finding Expert Witnesses to Support the Defense.
- Just like the search for an investigator, ask your colleagues. I try to get several names so that I can interview a few. I always want the very best in the field. Practically speaking, you have to hire the experts that fit your budget. Expert testimony can be very expensive. In complex cases you may need several. Again choose your experts judicially. This expense can be overwhelming. If you are court- appointed, you must get approval from the court to hire an expert.
- When you are interviewing the experts ask pertinent questions. How many times has this expert testified before? Has this expert ever taken a different position than what you are requesting? If so, why has his opinion changed? How much? Doctors will want a horrendous amount of money. I had a treating physician once tell me he charged $1,000.00 per hour for testimony.
- If you feel that more than one expert is needed, you may want to rank the type of experts you need in order so that if you cannot hire all of them, you can at least get the most important. I have also hired an expert not to testify, but to get me ready to cross-examine the state’s expert. This is very helpful in difficult cases. It is much cheaper than hiring a testifying expert, and, in the right case, can have a big impact if you can really make the state’s expert look like a liar.
- Expert witness services. I do not like these services. The experts in my opinion have no credibility with the jury because they work for the service.
- Working with Informants and Confidential Sources
- This is not a problem that we face very often. However, from time to time, you will get someone with information who does not wish to be involved. If it is critical information, I try to get as much as I can before I tell them they may have to testify anyway. There are times when they can give you information that you can prove a different way. This will allow you to gain credibility with others who may have information and have been unwilling to come forward.
- If you are going to use someone in this fashion, then you better get something in return. This person better be able to get you what you need. It is not very often that I make a deal with someone that I will not call them to testify.
- Preserving Evidence for Trial
- This is simple. Do not take control of evidence yourself. Have your investigator keep the evidence so that you do not become a witness in your client’s case. Have tight controls on what evidence that you take control of.
- Business records are easy. Issue a subpoena for the records and send it over with a business records affidavit. Tell them that they may not have to appear if they sign the affidavit. Do not tell them they will not have to appear because you never know what will happen. The subpoena is the best way to get documentary evidence.
- Once you get your evidence put together, have a place that it is stored that you know is protected from deterioration, and, or damage. There is no feeling worse than on the eve of trial when you cannot find your evidence.
This may appear to be elementary. That is because it is. A proper investigation is limited by the imagination of the lawyers and the investigators they employ. While you need to use your time and resources judicially, it is important to use the time productively. Never get into a situation where you feel that investigation is not a necessary step in the proper representation of the criminally accused.
The fee you were paid requires that you do more than show up for trial. What we do is not only one of the most important functions required under the Constitution, it affects the balance of the lives of many people. Getting the job done right requires the active participation of the lawyer.
1US Constitution Sixth Amendment.
2The order here is different than in the brochure to make it flow with the case.
3In fact it is in my view a Sixth Amendment violation for the courts to cut off or limit arbitrarily the amount of funds available for investigation.