Colorado Tactical Criminal Defense: The Investigation Stage

“The secret to success – getting ready.” Henry Ford;

To achieve peace, plan for war. “In preparing for battle, I have always found that plans are useless, but planning is indispensable.” General Dwight Eisenhower

The lawyer who knows only her side of the case, knows little. When that lawyer comes into the courtroom with her client, the opposition high fives each other.

“It isn’t the mountain ahead that wears you out. It’s the grain of sand in your shoe.”

Private Investigators are hired by criminal defense attorneys and individuals to gather information, collect evidence and find people. Private Investigators must know and understand the laws that govern the use of investigative methods. These methods include physical and electronic surveillance, proprietary database searches, interviews and other research methods used to discover information required by a client.

Some Private Investigators specialize in different types of investigations, such as legal investigations, corporate and financial investigations, personal investigations or background checks.

Private Investigators are retained by criminal defense attorneys to verify testimony, investigating potential suspects, and locating and interviewing witnesses.

The more experienced advocate obviously has a leg up over the nascent, wet-behind-the-ears rookie in the pretrial process. But competent pretrial practice is not so much about how much you know going in as it is how much you know when the pretrial process is completed. A big part of pretrial practice is:

1. determining what you need to know,
2. figuring out what you already know and what you don’t know,
3. conducting the investigation, discovery, and legal research to obtain the necessary information that you didn’t know, and
4. preparing to present the useful information at trial in a manner that will provide the meat for convincing arguments in favor of your position. You don’t have to know much at the start of the pretrial process, but you do have to learn how to gather, obtain, and learn things so you will know a lot by the end.
   • What happened?
   • How did it happen?
   • When did it happen? (The Perpetual Calendar will help with the day of the week.)
   • Why did it happen, i.e., now that I know what happened, what happened before this to make this happen?
   • Where did it happen?
   • What else would necessarily or probably happen after this happened?
   • Who did what? To whom or what was it done?
   • What do I need to prove?
   • How do I use the evidence to prove what I need to prove?
   • How do I get the evidence I want in front of the jury?
   • How do I persuade the jury that the evidence proves what I want it to prove?
   • What evidence will my opponent present to the jury?
   • What will my opponent argue based on the evidence?
   • How do I counter my opponent’s arguments?
   • How do I convince the jury to rule in my favor?

The law requires criminal defense lawyers to conduct a thorough investigation of the facts and evidence

“Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.”

Standard 4-4.1(a) – Duty to Investigate ABA Standards for Criminal Justice : Prosecution and Defense Function

Gathering Information as an Integral Part of Pretrial Preparation: Remember the old proverb that admonishes us not to cross our bridges before we come to them. In criminal cases, this is a disastrous philosophy. Trial lawyers spend considerable pretrial effort identifying the bridges they will need to cross in the courtroom and planning exactly how to cross them. That is what this page is about.

Learning how to plan and conduct a factual investigation to uncover and discover potential evidence:

Recent graduates from law school find it a bit difficult to investigate their client’s case. This is understandable because most law schools don’t teach this skill. Also, in law school you’re typically provided with a given fact situation in an appellate case and asked to apply your analytical skills in predicting and arguing a legal result. In the real world of the courtroom, you learn that there is no a priori given set of facts.

You have choices as to what information will be presented to the jury. That choice is informed by the information you gather during the investigation phase of your case. It is also influenced by your choices in selecting, discarding, and ordering information for presentation in court. In order to plan, direct, and, where applicable, participate in factual investigation of your case, every criminal defense lawyer needs to be familiar with the following processes, skills, and concepts:

• Determining the need for factual investigation.
• Planning and prioritizing the factual investigation.
• Implementing the investigative strategy into gathering of factual information..
• Memorializing, sorting, and organizing factual information in accessible form.
• Deciding whether to continue or conclude the information gathering process.
• Reviewing and evaluating the information that has been gathered.
• Reconstructing relevant events.
• Litigating the case at the trial court level.
• What Will Be Investigated?

First, there must be a person, place, or event that needs investigation. In other words, we must know what it is that we need information about. In criminal cases, we typically need information about people, places, and events that are reflective either of commission of crime or existence of defense to crime. To prepare for trial, you must be able to visualize the way the case will unfold at trial, i.e., what you and the opposing lawyer will do. Before the process of visualization of the trial can take place, information must be gathered.

There is a mountain of information surrounding every event. Theoretically, with enough time, you could gather all conceivable information surrounding an event and sift through it for data that might be legally relevant as potential evidence. In practice, the investigation of people, places, and events is guided by:

1. your understanding of what needs to be investigated,
2. available resources,
3. laws and procedural rules, e.g., the substantive law of crimes, criminal procedure, and the rules of evidence, that define crimes and defenses and limit what information can be introduced in court, and
4. a good measure of common sense.

The information that is gathered about the people, places, and events will yield a tentative theory of the case (Scientist call it a “working hypothesis.”).

In the early phases of pretrial investigation, your theory of the case is tentative. You never develop your theory of the case in a vacuum. You never try to shoehorn an impossible factual story into your theory of the case.

Sherlock Holmes taught us that “it is a capital mistake to theorize before one has data; insensibly, one begins to twist facts to suit theories, instead of theories to suit facts.” If credible new information surfaces that is inconsistent with your theory of the case and it cannot be satisfactorily explained away, you must be willing to regroup, rethink, and form a new theory. In other words, if your theory of the case doesn’t hold water in light of the potential evidence, form a new theory, and test it. As your tentative theory is weighed against the developing facts and passes, it ceases to be tentative and becomes the operative theory.

The operative theory of the case leads logically and emotionally to a conclusion.of why the accused is either guilty or not guilty. It is this operative theory of the case that constitutes the taproot of your pretrial investigation, planning, and preparation. At trial, your operative theory of the case is the one paragraph explanation of why you should win.

Types of Information:

What types of credible information may be relevant to your case? Possibilities include:

1. information surrounding the event(s) in issue;
2. information that explains why the event(s) occurred, e.g., evidence of motive, prior relationship between the parties, etc.;
3. information relevant to previous events that may form the basis of a defense, e.g., prior threats of the complainant in a self-defense case, prior law enforcement inducement in an entrapment defense case; etc.,
4. evidence that impeaches or bolsters the credibility of the witnesses, the victim, and/or the accused. You also want information about your adversary. Who is your opponent? Remember the wartime advice: To fight an enemy, it’s important to know his numbers, but it is more important to know his philosophy.

You need believable information for purposes of offense and defense. On offense, information is the meat of your story of the case. On defense, forewarned is forearmed. That is, if you know what information is coming from the other side at trial, you will be better prepared to employ your lawyerly skills to confront and neutralize it than the advocate who does not know what is coming around the corner.

Methods of Gathering Information Useful to Your Defense:

As the old saying goes, “Forewarned is forearmed.” If you know what is coming from the other side, you will be better prepared to deal with it. Defenders and prosecutors must be familiar with the basic methods of gathering and developing useful information and the cost/benefits of each method. The two methods are discovery and investigation.

Discovering Information Gathered or Generated by the Other Side:

The prosecution gathers information by dispatching paid government agents who are trained to investigate possible crimes, gather potential evidence, and be prepared to testify to their efforts at trial. The government also builds laboratory facilities and employs forensic analysts to examine and test tangible material that has been gathered and testify as expert witnesses at trial.

We can generally be sure that if the government charges a defendant with a crime, the government will have information that it has gathered in support of the allegation. So, one way the defense can gather information to prepare for trial is by obtaining formal (by the book) and/or informal (discretionary) discovery of the information upon which the prosecution bases the accusation.

Informal defense discovery requires cooperative communication with the opposition. Sometimes, sleeping with the enemy is the best way of picking its mind. Prosecutors may be loathe to reveal anything more about their case than is required by law.

Yet, to take a hardball, do-it-by-the-book attitude in every case would be to discourage guilty pleas, something that the prosecution cannot afford. As a matter of practicality, many prosecutors will informally provide defenders with information about the prosecution’s case with an eye to encouraging a guilty plea. It’s generally proper practice to resolve a case by good faith mutual agreement of the parties.

Formal defense discovery in a criminal case occurs when the defense seeks and obtains a formal court order instructing the prosecution to reveal investigative information to the defense. Informal discovery occurs when the prosecution voluntarily reveals investigative information to the defense without formal court order. Every jurisdiction will have its own statutes and rules governing the pretrial and trial discovery process in criminal cases

In some jurisdictions, e.g., federal court, there are rules of counter-discovery that allow prosecutors to have discovery of defense information as a condition to statutory discovery by the defense of information in possession of the prosecution. Defenders and prosecutors must develop a working knowledge of formal pretrial discovery motion practice in their jurisdictions. It is not uncommon in this digital age to receive your discovery from the opposition on a RW-CD/DVD (read/write compact disc/DVD).

Discovery from the defense perspective has a Constitutional dimension. The United States Supreme Court has generated case law that provides some threshold rights for defense discovery of information in possession of the prosecution and/or its agents when such information is favorable to the accused.

Rather than limiting yourself to trying the case solely on information discovered from the prosecutors file, defenders should conduct their own independent factual investigation of the case. If a client can afford the services of a top-notch investigator, consider the advantages of doing so.

The Investigator starts with some basic questions: Gathering Information About the alleged victim:

What can you learn about the complainant the alleged victim? Quite a bit, if you have the time, the need and the financial resources to make the investigative effort. Aside from basic personal facts such as sex, race, age, marital status, personal appearance, education, socioeconomic level, residence, vehicle, prior criminal record, etc, you may be able to develop a reasonably accurate profile of a complainant’s childhood history, lifestyle, intelligence, and personality.

In trial work, what you don’t know can hurt you. Ignorance is not bliss when it comes to information that witnesses may possess. It is folly for a defense lawyer not to identify and locate witnesses and see to it that they are fully interviewed.

Witnesses come in three flavors: friendly, neutral, and hostile. (Adverse witnesses, either the opposing party or witnesses identifying themselves with the opposing party, are almost always hostile.)

1. A fact witness knows something relevant about what happened or didn’t happen,
2. A character witness knows something about a relevant and admissible character trait of the accused, another witness, or the alleged victim,
3. An expert witness has knowledge about relevant matters that will be helpful to the jury in understanding the evidence.

Witnesses should be interviewed after there is an understanding of the prosecution’s theory of the case, i.e.,. what the government claims happened and knowledge of the possible defense available in the jurisdiction.

The criminal defense lawyer will put together an investigation plan before witnesses are contacted.

The private investigator is then briefed regarding the sort of information is needed. Otherwise, your investigator won’t know what questions to ask and which answers to pursue.

Lay witnesses (and sometimes even experts) are not expected to know what information is relevant. So, prior to interviewing witnesses, rapidly obtaining discovery is fundamental to forming an investigative plan.

You want to obtain all the relevant information possible, but you don’t want the relevant information to be buried in a mountain of irrelevant detritus.

To comprehend and understand a scene and what may have happened there, you must visit it. The lawyer may also need to visit a scene with the investigator perhaps even taking a supporting witness who can gather potential evidence and testify as an authenticating witness, should the need arise.

They should become personally familiar with the environment of the scene. Walk it. Gather tangible objects that could be potential evidence. Make detailed notes. Make a diagram. Include relevant measurements. Record the scene by photographing and, if useful, videotaping it. To record scenes properly, read tips about taking better photos, how a camera works, photography, how to buy equipment and take photos, and crime scene photography, e.g., angles, panning, lighting, etc.,

How do I know when I need and Investigator? Your lawyer will consult with you about the need and costs of an investigator.

Why would I need an Investigator to investigate a criminal offence ? It is not wise to rely solely on the police investigation if you have the means to conduct an independent investigation.

How much should I pay for an investigation ? If you are paying more than $100.00 an hour, you are paying too much.

Are there any guarantees in an investigation ? The only guarantees in any investigation should be…(1) That the Investigator knows what he is doing, and will do his/her best; (2) That the Investigator will keep a detailed log of his/her time and activities to explain all expense; and (3) That your investigation will remain confidential.

Should I have to pay up front for an investigation ? Yes, most all Detective Agencies work with a retainer.

How much should the average investigation cost ? There is no average, each investigation is different.