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Criminal Defence Investigations

Years ago, I figured if the cops arrested someone, they were probably guilty, or they wouldn’t be in jail. I don’t feel that way anymore. How about you? Do you believe in the “innocent until proven guilty” rhetoric?

There’s a law professor at Pace Law School named Rudolph McLaughlin who says, “There’s no blindfold over anyone’s eyes in the criminal justice system.” That, I do believe.

I am not anti-cop by any stretch, but law enforcement and witnesses do make mistakes and do lie in court. Law enforcement personnel believe the evidence does not lie. It can, however, be misinterpreted. I have seen such examples many times in my twenty-plus years of criminal defence investigation.

Can you imagine a system where there are no defence provisions for someone accused of or arrested for a crime? It would be carte blanche for anyone prosecutors wanted to put away.

The Process

So, let’s take a look at how a typical case works:

Someone witnesses a crime and calls law enforcement. A patrol officer gets a radio call and heads to the scene. He figures he’s headed to a crime situation. Why else would they need him?

Often, it’s at the discretion of those officers on the scene to determine what happened and who did what. From there, it becomes a series of reports, written and oral, based on those determinations. If detectives get involved, they put together a theory and seek to gather evidence to support it. Maybe they know who is guilty, maybe not. They gather what they believe to be facts about the case. When they have enough to make an arrest, a “suspect” is taken into custody. Detectives may continue to investigate after the arrest in order to bolster their case.

Our laws require that a defendant receive a suitable defence. When defendants cannot afford to hire an attorney, one is provided by either the public defender’s office or a court-appointed private lawyer. If a private attorney is retained by the state, a private investigator may be appointed also by the state if the attorney requests it and a judge approves.

If a defendant does hire an attorney, it is up to that attorney to decide whether an investigator is needed. According to noted defence attorney F. Lee Bailey, an adequate defence cannot be prepared without the assistance of an investigator.

To support that belief, take a look at what has happened by the time a criminal defence investigator does get involved. A team of uniformed police, detectives, laboratory and crime scene investigators, selected witnesses, recorded jail phone conversations, street informants on occasion, and the office of the prosecution attorney have all contributed to the prosecution’s case, which is to be disputed by one attorney and one investigator. And then, only after it has all been written up in reports which support a conviction, does an investigator get involved. It’s an uphill climb.

The Case Study

Case in point (and true story):

A defensive back on one of our state university football teams is arrested for assaulting a female in a campus-town club. He has been identified by the victim, her fiancé, and a friend of the victim. The athletic department suspends him from the team pending an investigation.

A law firm retained by the university takes the case, and without an investigator, advises the athlete to plead guilty to a lesser offense. He refuses, saying he is not guilty and does not want this on his record. The football team dismisses him. He is now on his own to fight this case.

A public defender gets involved, with an investigator on the defence team. The investigator finds other witnesses whom the police have not chosen to visit or have not realized existed. The case goes to trial, and the defendant is found not guilty by a jury. It turns out the female was struck in the eye by her own fiancé’s elbow while scuffling with others in the club. The intoxicated female remembered the football player’s face from being at the club, and the fiancé went along with the story.

The defensive back is now free from the system but has lost his position on the football team and his scholarship. He has suffered the humiliation of  incarceration and assassination by the media. The police and prosecutors made a mistake, and an innocent person paid the price.

Criminal defence investigation is about finding mistakes and holes in the prosecution’s case and uncovering evidence and witnesses which will refute their claims—perhaps even an alibi. It also can involve finding what is called “exculpatory evidence”—evidence which might have helped the defendant, had the prosecution revealed its existence to the defence. If law enforcement interviewed any witnesses who are not on the State’s witness list, a defence investigator should speak to them, for sure. Défense attorneys like to know ahead of time what a witness is going to say in depositions, if possible.

The Scene

It also helps to visit the scene of the crime, even though it may be weeks later. It helps form a picture and may point to areas which were neglected or not followed up on by the prosecution investigators.

One question which should be asked of law enforcement personnel who were on the scene of an incident is, “At what point did you determine a crime had been committed?” If an officer is headed to a call with a predetermination that a crime is taking place, an arrest is imminent. If not, what fact at the scene changed his mind?

The Interviews

Criminal defence investigators must be good at conversation on all levels. It helps to be pleasant when talking to witnesses. If you need to talk to an illiterate street person or CEO, know the language. We do not interrogate anyone. Sometimes we need to know what a witness might say if asked a particular question by the prosecution. When that situation arises, tell the witness you might sound like you’re not on their side. Assure them that you are, and tell them why you might be asking a possibly unfavourable question.

A criminal case deserves a thorough investigation, and attorneys do not like surprises in the courtroom.

In questioning witnesses or writing reports, use the term accuser rather than victim. The word victim implies someone suffered some sort of negative consequence. “Accuser” indicates possible doubt. And remember, if your case goes to trial, reasonable doubt is what you and the attorney hope to establish.

The Lawyers

I have encountered three different attitudes in attorneys handling criminal cases. Some want to believe their client is innocent in order to get an acquittal. Others believe their client is guilty of something but perhaps not exactly what they’re charged with. Some don’t care either way. They are just concerned with whether the prosecution can prove its case.

Empathy can help, but in all cases stay away from personal or emotional connections with witnesses and defendants. Focus on facts.

The Myths & The Realities

It’s been my experience that prosecutors will charge a defendant with the most severe offense they can based on their information. I believe that is for plea bargaining purposes. Less than five percent of criminal cases in our state ever go to trial.

Reinforcement of my beliefs in criminal defence are demonstrated by facts and figures produced by the Innocence Project. Over 300 inmates in prison for serious crimes have been exonerated by new evidence, which for whatever reason was not presented at trial. Seventy-five percent of them were convicted on eyewitness testimony.

Innocence Project believes 1.5% to 5% of inmates in U.S. prisons are not guilty of the crime for which they are incarcerated. That’s a lot of “proven guilty” individuals.

Your job is to take care of your defendant and your attorney the best way you know how.

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