Criminal Defense Investigation: Theory, Practice, and Methods

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Recommended citation:

Pennington, Jeremy. Criminal Defense Investigation: Theory, Practice, and Methods. Ironton: Pennington & Associates Ltd., 2016


Denial and Deception

Denial and deception should be at the forefront of a criminal defense investigator's thought process. Unfortunately, a wide array of reasons exist why information will be denied or the criminal defense investigator will be deceived. In short, denial and deception emerges from three main sources: the Defendant, witnesses, and law enforcement. The Criminal defense investigator must be cautious of this and consider the likelihood that denial and deception will occur.

Countering denial and deception is a critical task of the criminal defense investigator. Denial and deception are two of the three critical barriers to a successful criminal defense investigation. The third is the criminal defense investigator's own errors in critical thinking. The latter part of this book is devoted to the issue of critical thinking through the application of structured analysis techniques. To some degree, countering denial and deception is a collection issue; however, to a larger degree, it is an analytical issue. As a result, the issue is heavily tied to analytical judgments and the possibility of these judgements leading to catastrophic failure. This form of failure is driven by two components: information that is unknown to the criminal defense investigator because it has been “denied” and information that is manipulated to cause the criminal defense investigator to arrive at a false judgment due to intentional “deception.”

The Defendant

The defendant, in many cases, is the primary source of denial and deception. The defendant may actively deceive by denying the criminal allegation lodged against them. This can occur through varying degrees of deception. The defendant may deceive the criminal defense investigator on critical aspects of the alleged crime. In other cases, the defendant may outwardly deny any involvement in the alleged crime. On the other hand, the defendant at times may withhold information that is critical to the criminal defense investigator’s work. This form of denial will involves critical details of the incident. Any form of denial and deception on the part of the defendant can have a detrimental effect on the overall work product of the criminal defense investigator.

Denial and deception by the criminal defendant are critical issues for the criminal defense investigator. In general, two possible aspects will drive a defendant to employ denial or deception: embarrassment and manipulation.

The defendant may simply be embarrassed to admit their involvement in a criminal activity. This can emerge in varying degrees. The defendant may find a specific action undertaken during the alleged crime, or general involvement in a criminal activity, embarrassing. This embarrassment may come from the prospect of admitting involvement in the criminal activity to family and friends. More simply, the defendant may find embarrassment in admitting to the criminal activity in front of the criminal defense attorney. The defendant may feel the professionals working on his or her defense may become judgmental or reluctant to provide a vigorous defense.
More commonly, the defendant may be simply presenting manipulative behavior. Several hypotheses could be presented to argue the reasoning behind the manipulative behavior used by many criminal defendants. However, these hypotheses would have no utility. In reality, many criminal defendants are simply guilty of their accused crimes. Many criminal defendants live lifestyles based on criminal enterprises of thievery, illicit drug use, and general manipulative behavior. As a result, there is no reason, in the minds of the criminal defendant, to alter their behavior when represented by a criminal defense team. In turn, too many criminal defendants deny critical information or deceive the responsible criminal defense attorney and criminal defense investigator.

Unfortunately, any form of denial and deception employed by a criminal defendant only creates difficulties in their defense. The all-too-common occurrence of denial and deception causes many criminal defense attorneys and criminal defense investigators to form a bias regarding any information provided by criminal defendants. As a result, the criminal defense investigator must have considerable mental discipline in order to receive any defendant’s statements at face value. However, the criminal defense investigator must at the same time determine the logical probability that the defendant’s statements are true or deceptive. This is a critical aspect of handling and processing information received from a criminal defendant. The responsible criminal defense attorney has a considerable need to know if the defendant’s version of events will ultimately withstand scrutiny during a criminal trial.

Witnesses

Witnesses to criminal activity present a unique set of problems for criminal defense investigators. This is especially true in the possibility of a witness engaging in any form of denial or deception. The reality is that most witnesses have very little vested interest in the defense of a criminal defendant.

Witness denial and deception should be expected and the utmost consideration should be given to this possibility when dealing with any witness, including any codefendants. Witnesses have considerable motivation not to become involved in any form of criminal proceedings. As a result, a witness may simply deny any knowledge of the alleged criminal activity. A witness may also employee deception. The motivations for this can vary widely. The witness may present an unknown bias in the form of a pre-conceived view of the defendant or may use their testimony as an opportunity for retribution for prior interactions with the defendant. In the most complex scenario, a witness may deploy deception in an attempt to hide their own involvement in the criminal activity or to protect a codefendant.

The most common and difficult issue in cases of witness denial and deception is the existence of a snitch or codefendant turned State witness. In both scenarios, a witness exists that has a vested interest in supporting the State's criminal hypotheses. Both types of witnesses receive some type of compensation for their testimony. In some cases, the witness may receive payment in monetary form. In other cases, the most common, they are receiving a reduction in sentencing or walking freely from an unrelated criminal charge. Nevertheless, the witness has ample reason to embellish or downright lie in their testimony.

A criminal defense investigator needs to be sensitive and highly detailed in determining and countering witness denial and deception. Every witness needs to be viewed as being highly likely to deny information or deceive the defense to some degree.

Law Enforcement

Law enforcement, including the prosecutor, uses denial and deception at a professional level. This denial and deception can be found from the initial criminal investigation through the criminal trial. In most cases, law enforcement will be observed simply denying information. Only in rare occasions will law enforcement employ true deception. Nevertheless, denial and deception on the part of law enforcement will be experienced in almost every single criminal defense investigation.

The foremost form of denial on the part of law enforcement will be found in official reporting. Any criminal defense investigator who practices in multiple jurisdictions will find that law enforcement reporting varies widely in style and content. Official reporting will be presented in a narrative format. These narratives will vary from the inclusion of low-level details to highly detailed reporting. The most common form of denial by law enforcement is the exclusion of information from official reporting. Unfortunately, law enforcement officers are extremely biased in their reporting. Law enforcement reporting, typically, only includes incriminating information. Any possible information suggesting innocence is simply omitted. For example, it is all too common for a law enforcement officer to interview many witnesses but only document witness testimony that provides incriminating evidence. As a result, the witnesses who would create a reasonable doubt are left undocumented and unknown to the defense team and the court.

Law enforcement officers consistently omit any details that would allow an observer to gain an understanding of their tradecraft as investigators. This practice is based on a belief that if the general public had a detailed understanding of law enforcement tradecraft, criminals would only be more successful. However, this is a fallacy. The bulk of law enforcement tradecraft is clearly detailed in volumes of literature. Although law enforcement tradecraft is well documented in literature, the critical issue is whether specific law enforcement officers correctly utilize acceptable investigative methodologies. This becomes of critical importance when dealing with the collection of physical evidence, crime scene processing, and reconstructions. Without fully understanding how a specific law enforcement officer completed these tasks, there stands a chance that the law enforcement officer erroneously altered or failed to document physical evidence. In the case of a reconstruction, the law enforcement officer may reach a false analytical judgment.

The most extreme form of denial of information comes through failing to admitting to the existence of official documentation. This can be observed in many forms, but typically this form of denial is practiced by the prosecutor. In simple terms, the prosecutor has the overbearing intention to present the defendant as guilty. This is carried out by only presenting information demonstrating guilt and withholding any information proving or suggesting innocence. If the defense team is unaware of any official documentation that might suggest innocence, they are unable to cite it in discovery requests. Fortunately, this form of denial can be countered through analytical judgments.

Law enforcement deception is a critical concern for any practicing criminal defense investigator. Typically, the most common form of law enforcement deception is intentionally hiding information or omitting unintentional errors. This form of deception is the result of professional embarrassment, the drive to secure a conviction, or efforts to protect their career. Many individuals fail to remember that law enforcement officers are simply employees of their respective agencies. As a result, many forms of internal politics exist. These politics drive assignments and promotions. A law enforcement officer has more than ample motivation to hide their mistakes.

In extreme cases, law enforcement officers will commit acts of deception to secure a conviction. Many factors can drive this form of deception, including the factors mentioned above as well as political or personal bias. No matter the reasoning, intentional deception can be devastating to the defendant. These forms of deception can be observed in many forms, but the most common are false documentation, evidence tampering, and providing false testimony. Intentional deception is the worst case scenario and can reach a level of extreme complexity.
The criminal defense investigator must always consider the possibility of all varying forms of law enforcement denial and deception. There will always be some level of both throughout every criminal defense investigation, however, the key is determining the degree of denial and deception and whether it is acceptable. In many cases, the denial of information on the part of law enforcement is considered acceptable to some degree. In many cases, the courts and local laws support this behavior for varying reasons, based on politics and statutory law. Nevertheless, the criminal defense investigator needs to be sensitive to the possibility that these thresholds have been breached to the degree of unacceptability.