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


The Professional Criminal Defense Investigator

Criminal defense investigators are often considered (or perceived as) black hats by the public and licensed private investigators. The general public has little understanding of criminal defense investigations. Likewise, many licensed private investigators shun this practice due to a lack of understanding and, in many cases, moral objections. Criminal defense has been left to those with the courage and motivation to take on an endeavor that is unpopular and often socially taboo. It is an important undertaking in society. At times, the innocent are placed on trial and stand the liability of being stripped of life and liberty.

DNA testing and post-trial defense by the Innocence Project have allowed us to see many wrongly convicted individuals freed from incarceration. Many advocates of their prosecutions have been dismayed by their release, but there is an important lesson to learn from their exoneration: criminal defense investigators are a necessary and important aspect of the criminal trial process. They are just as essential as attorneys. The prosecution holds a legion of resources, chief among them is law enforcement, with a multi-tiered structure of investigators and other support. No state would remove this important resource from the hands of prosecutors. Why should a criminal defendant be denied the same resource? From the author’s point of view, criminal defense investigation is one of the most pivotal issues in criminal defense.

The services of a criminal defense investigator are extremely valuable in defending the accused. A defense investigator is able to shed light on the “real terms” of an alleged incident. To a large degree, defense cases hold a veil of secrecy. The State presents a case of complete guilt and will vigorously hold this view unless dislodged from its position. A defense investigator is able to provide a stream of unbiased information to the defense attorney who is then able give weight to arguments. This unbiased information is obtained, to some extent, through the same process used by law enforcement, but it is objective.

Criminal defense is expensive, more so than most could fathom. From the author’s experience, the cost of a defense for the accused can easily exceed $10,000 for a common case. This can easily double with the participation of a criminal defense investigator. Although a criminal defense investigator’s hourly fees are normally less than those of an attorney, the time required to complete a criminal defense investigation is considerably more than the time invested by an experienced attorney in most cases. Thus, a full defense, comprised of an attorney and defense investigator, can make a considerable economic impact and in many cases is impossible for the defendant.

This issue of economic impact is only further enhanced when the social class of most criminal defendants is taken into account. Most criminal defendants are poor or would struggle to pay for a private defense. In turn, the State pays the bill. This process and the resources provided vary from jurisdiction to jurisdiction. Nevertheless, in many cases, the resource of a criminal defense investigator remains unseen in many defense cases.

In many jurisdictions, a criminal defense investigator’s services are only called upon during the worst cases, such as rape or murder. This causes a stovepipe affect in the area of criminal defense investigation. With a low rate of use, the professional development of a criminal defense investigator can be slow. There is no clear development track to becoming a criminal defense investigator. There is no college degree available for mentorship and training. The sad reality is that there are simply no qualified criminal defense investigators available in many jurisdictions.

The background to practicing criminal defense investigation varies. Some investigators emerge from careers in reporting, law enforcement, or for-profit investigations. Regardless of their backgrounds, over time, many develop the necessary skills. In many cases, they were the only ones available and through trial by fire they branded themselves in this role.
There has been considerable debate among licensed private investigators as to the appropriate background for successfully gaining entry into the industry. Many licensed private investigators have shown extreme bias toward former law enforcement officers. This colorful discussion can sometimes be found online, and the same bias appears during public interviews when licensed private investigators are asked about the appropriate background for criminal defense investigators. However, this bias is normally exhibited by licensed private investigators who do not have a law enforcement background.

Critics of law enforcement officers becoming private investigators have cited an array of negative factors. Chief among them is that law enforcement officers tend to overwork assignments, exceed established budgets, lack any real business experience, use deplorable tactics, and hold an overwhelmingly dogmatic view of criminal defendants. On the other hand, these critics rarely recognize the investigative skills held by law enforcement officers. To a mild degree, these criticisms have some validity, but these arguments are almost always riddled with bias and driven by the need for personal branding in business.

Popular culture and Hollywood have branded the private investigation industry as corrupt and exemplified by distasteful investigative work. As with many professions, Hollywood has failed to capture the reality of the private investigation industry, presenting the main revenue generator as cases of infidelity. Unfortunately, this image has taken a stronghold in popular culture and has only been reinforced by true stories of corrupt and unskilled private investigators in the mainstream media. Today, the public views private investigators as individuals who operate in dark alleys while gathering negative information on otherwise innocent citizens.

Over the years, working private investigators have tried to polish their public image. However, these attempts have largely failed. In the same token, individual private investigators have used their qualifications as evidence of the quality service provided to the public at large. Those from a non-law enforcement background are met head on by public knowledge of and overwhelming familiarity with law enforcement officers. In turn, while promoting a professional image, the individual is confronted with public questions of credibility and skills. In simple terms, is a private investigator with no law enforcement experience really qualified to work as an agent for hire? Many different answers could be given in response to this question. However, those with no law enforcement background still perceive a need to defend their credentials. In necessitating this justification, the industry has cast a black cloud over those with law enforcement experience. In reality, individuals from a wide array of backgrounds could qualify to work as private investigators.

The obvious background for a criminal defense investigator is training in law enforcement; however, this logic is false. The person most qualified is someone trained and educated to work as a criminal defense investigator. Many professionals are trained in this same way. For example, physicians are trained in medical school and then mentored during a residency. Why should this be different for a criminal defense investigator? Unfortunately, there is no school of higher education for criminal defense investigators. Thus, most working professionals arrive from different occupations and few are trained through internships.

Investigator vs. Attorney

In the area of criminal defense, the criminal defense investigator and defense attorney are a team. However, there can be conflicts in this relationship that require special attention, which are noted within this book. The criminal defense investigator, in particular, can find navigating this relationship confusing at times.

The criminal defense attorney is the forefront in all matters. In simple terms, the attorney is the tip of the spear. Any criminal defense endeavor is only as strong as the attorney leading the defense. The criminal defense investigator plays a supporting role, comprised of gathering evidence, analyzing evidence, and serving as an expert witness. The investigator uncovers and analyzes information, known as evidence. How this evidence is used and argued in court is the responsibility of the criminal defense attorney.

In practice, this relationship can have overlaps at times. The criminal defense investigator must be attentive to these overlaps when they occur. In many cases they can detract from the investigator’s work and in some cases will hinder the defense of the accused. An investigator should never give an opinion on a matter of law to a criminal defendant, or anyone for that matter. A criminal defense investigator is not an attorney. There are some investigators who are qualified to advise on legal matters because they have attended law school and are admitted to the bar. However, even in this case, the investigator should strictly avoid giving an opinion. Legal advice should be solely left to the criminal defense attorney, who holds the responsibility of representing the defendant. The only discussion of legal matters the investigator should have is directly with the responsible attorney, away from the defendant.

A criminal defense investigator should not attempt to formulate a defense strategy. The investigator should provide all available information and evidence to the defense attorney, who in turn will decide the specific defense strategy. This is a reoccurring issue with investigators working as law enforcement officers and criminal defense investigators, alike. An investigator should not be concerned with possible legal arguments in relation to evidence. The only opinion an investigator should hold and openly discuss is whether the collected evidence is credible. Credibility should be the foremost concern for any investigator, who holds the responsibility for collecting and documenting evidence. This responsibility is referred to as the “burden of proof,” where the attorney has the “burden of argument.”

Any relationship between an investigator and attorney will ultimately be driven by the personality of the responsible attorney. Views and work habits differ among attorneys. In light of this, the criminal defense investigator will need to conform to the needs and views of the attorney. This can be frustrating, but it is the reality of the profession. The only exception to this is when unethical conduct occurs. Unfortunately, there may be unethical attorneys who demand unethical conduct from criminal defense investigators. If this occurs, the criminal defense investigator should simply refuse the work, citing their objections.

Ethical and Moral Issues

Criminal defense investigators are often considered (or perceived as) black hats by the public and licensed private investigators. The general public has little understanding of criminal defense investigations. Likewise, many licensed private investigators shun this practice due to a lack of understanding and, in many cases, moral objections. Criminal defense has been left to those with the courage and motivation to take on an endeavor that is unpopular and often socially taboo. It is an important undertaking in society. At times, the innocent are placed on trial and stand the liability of being stripped of life and liberty.

DNA testing and post-trial defense by the Innocence Project have allowed us to see many wrongly convicted individuals freed from incarceration. Many advocates of their prosecutions have been dismayed by their release, but there is an important lesson to learn from their exoneration: criminal defense investigators are a necessary and important aspect of the criminal trial process. They are just as essential as attorneys. The prosecution holds a legion of resources, chief among them is law enforcement, with a multi-tiered structure of investigators and other support. No state would remove this important resource from the hands of prosecutors. Why should a criminal defendant be denied the same resource? From the author’s point of view, criminal defense investigation is one of the most pivotal issues in criminal defense.

The services of a criminal defense investigator are extremely valuable in defending the accused. A defense investigator is able to shed light on the “real terms” of an alleged incident. To a large degree, defense cases hold a veil of secrecy. The State presents a case of complete guilt and will vigorously hold this view unless dislodged from its position. A defense investigator is able to provide a stream of unbiased information to the defense attorney who is then able give weight to arguments. This unbiased information is obtained, to some extent, through the same process used by law enforcement, but it is objective.

Criminal defense is expensive, more so than most could fathom. From the author’s experience, the cost of a defense for the accused can easily exceed $10,000 for a common case. This can easily double with the participation of a criminal defense investigator. Although a criminal defense investigator’s hourly fees are normally less than those of an attorney, the time required to complete a criminal defense investigation is considerably more than the time invested by an experienced attorney in most cases. Thus, a full defense, comprised of an attorney and defense investigator, can make a considerable economic impact and in many cases is impossible for the defendant.

This issue of economic impact is only further enhanced when the social class of most criminal defendants is taken into account. Most criminal defendants are poor or would struggle to pay for a private defense. In turn, the State pays the bill. This process and the resources provided vary from jurisdiction to jurisdiction. Nevertheless, in many cases, the resource of a criminal defense investigator remains unseen in many defense cases.

In many jurisdictions, a criminal defense investigator’s services are only called upon during the worst cases, such as rape or murder. This causes a stovepipe affect in the area of criminal defense investigation. With a low rate of use, the professional development of a criminal defense investigator can be slow. There is no clear development track to becoming a criminal defense investigator. There is no college degree available for mentorship and training. The sad reality is that there are simply no qualified criminal defense investigators available in many jurisdictions.

The background to practicing criminal defense investigation varies. Some investigators emerge from careers in reporting, law enforcement, or for-profit investigations. Regardless of their backgrounds, over time, many develop the necessary skills. In many cases, they were the only ones available and through trial by fire they branded themselves in this role.
There has been considerable debate among licensed private investigators as to the appropriate background for successfully gaining entry into the industry. Many licensed private investigators have shown extreme bias toward former law enforcement officers. This colorful discussion can sometimes be found online, and the same bias appears during public interviews when licensed private investigators are asked about the appropriate background for criminal defense investigators. However, this bias is normally exhibited by licensed private investigators who do not have a law enforcement background.

Critics of law enforcement officers becoming private investigators have cited an array of negative factors. Chief among them is that law enforcement officers tend to overwork assignments, exceed established budgets, lack any real business experience, use deplorable tactics, and hold an overwhelmingly dogmatic view of criminal defendants. On the other hand, these critics rarely recognize the investigative skills held by law enforcement officers. To a mild degree, these criticisms have some validity, but these arguments are almost always riddled with bias and driven by the need for personal branding in business.

Popular culture and Hollywood have branded the private investigation industry as corrupt and exemplified by distasteful investigative work. As with many professions, Hollywood has failed to capture the reality of the private investigation industry, presenting the main revenue generator as cases of infidelity. Unfortunately, this image has taken a stronghold in popular culture and has only been reinforced by true stories of corrupt and unskilled private investigators in the mainstream media. Today, the public views private investigators as individuals who operate in dark alleys while gathering negative information on otherwise innocent citizens.

Over the years, working private investigators have tried to polish their public image. However, these attempts have largely failed. In the same token, individual private investigators have used their qualifications as evidence of the quality service provided to the public at large. Those from a non-law enforcement background are met head on by public knowledge of and overwhelming familiarity with law enforcement officers. In turn, while promoting a professional image, the individual is confronted with public questions of credibility and skills. In simple terms, is a private investigator with no law enforcement experience really qualified to work as an agent for hire? Many different answers could be given in response to this question. However, those with no law enforcement background still perceive a need to defend their credentials. In necessitating this justification, the industry has cast a black cloud over those with law enforcement experience. In reality, individuals from a wide array of backgrounds could qualify to work as private investigators.

The obvious background for a criminal defense investigator is training in law enforcement; however, this logic is false. The person most qualified is someone trained and educated to work as a criminal defense investigator. Many professionals are trained in this same way. For example, physicians are trained in medical school and then mentored during a residency. Why should this be different for a criminal defense investigator? Unfortunately, there is no school of higher education for criminal defense investigators. Thus, most working professionals arrive from different occupations and few are trained through internships.

Mindset

Ethical and moral objections to criminal defense are all too common among private investigators and law enforcement officers. Society, through pop culture, views criminal proceedings in terms of good versus evil. This is also prevalent on the investigative level. Popular television shows such as CSI, COPS, NCIS, and many more have done nothing but promote this fantasy of a war against evil. In the author’s experience, law enforcement has completely bought into this fantasy. This is not to say that reasonable and objective investigators do not exist within law enforcement; among the ranks of law enforcement, professional, objective investigators exist, but they are the minority. Unfortunately, many law enforcement cases are plagued by overwhelming bias. On the other hand, private investigators of limited backgrounds have also fallen into this fantasy.

The ethical and moral objections to criminal defense should be important to the criminal defense investigator. Many of these objections are held by most individuals and are rooted not in popular culture but in religious and personal views. These moral or ethical objections can be a considerable stumbling block to an effective investigation. The importance of an ethical framework becomes paramount in the criminal defense investigator’s professional work.

Bias is something that all persons experience in their daily lives. A criminal defense investigator is no exception. However, in the case of a criminal defense investigator, bias comes at an extreme cost. Moral or ethical objections to a crime are of little concern during a criminal defense investigation. This is not saying criminal defense investigators have released themselves from any moral or ethical obligations. In reality, a criminal defense investigator must have a well-grounded ethical and moral framework, but it must be separated from bias-driven accusations of an alleged criminal.

Morally and ethically, crime is wrong. In the same light, false statements, material misrepresentations, and empty arguments brought against the accused are also morally and ethically wrong, to the same degree. Unfortunately, these moral and ethical violations are all too common in our criminal justice system. The criminal defense investigator’s purpose and ethical obligation is to provide an objective assessment of witness statements, evidence, and the overall credibility of criminal allegations.

Unlike the criminal defense attorney, the criminal defense investigator is not an advocate. The temptation of holding an opinion regarding the accused’s guilt or innocence should be avoided. A criminal defense investigator should not speak or think in these terms. For the criminal defense investigator, determining guilt or innocence should be solely left to the court. Instead, the investigator should take a view grounded in fact and based upon what is known with a high degree of probability, which is determined through objective investigation.

The formation of bias is rooted in the interpretation of evidence. In terms of a criminal defense investigation, there is a critical difference between interpretation and analysis. Interpretation, in simple terms, is the action of judgement, which is the responsibility of the court. On the other hand, analysis is the action of viewing any one incident from an array of perspectives and not making a judgement but uncovering all available evidence to aid the court in judgement. A criminal defense investigator does not interpret evidence. The concern, from the perspective of the criminal defense investigator, is not the issue of guilt or innocence but uncovering all evidence and assessing its credibility.

In practice, a criminal defense investigator is responsible for providing unbiased information to the criminal defense attorney. This task can be easily misunderstood, but it holds great importance ethically, morally, and professionally. The opposing side, the State, will only provide evidence of guilt to the court, and in many cases, this evidence will be rife with bias. This bias comes in one of two forms: the denial of evidence that would cast a doubt on the alleged guilt and evidence that is of questionable credibility. The criminal defense investigator counters this bias through object analysis.

An in-depth examination of the adversarial process that plays out in the courtroom and within the hallways of the courthouse will lead any reasonable person to determine that assessing the guilt or innocence of the accused is dangerous for any criminal defense investigator. The objectivity of the criminal defense investigator is the foundation of an ethical and moral framework. Otherwise, only a biased work product will be produced, and the risk of a truly innocent person losing their freedom becomes more likely.

Beyond a “perspective grounded in fact,” a criminal defense investigator has other professional ethical obligations. These are not morally based but have been developed by the legal profession. In general, criminal defense investigators, or licensed private investigators more broadly, do not have a generally accepted ethical code of professional conduct. The writings of licensed private investigators focus strongly on the detailed tradecraft of investigations but overall do not address ethical professional conduct in any real detail. This creates a critical void for any investigator who enters the courtroom or whose work product finds its way into the court’s view. The current standard, which will most likely remain, is the Professional Code of Responsibility adhered to by attorneys. When a licensed private investigator is retained by an attorney or whose work product is assessed by a court of law, the Professional Code of Responsibility adhered to by attorneys will most likely come to bare on the evidence uncovered by the licensed private investigator. In this same light, a criminal defense investigator, in most case an independent licensed private investigator, must adhere to the same ethical standards as an attorney.

The Professional Code of Responsibility can vary from state to state. Generally, the ethical requirements of each state should model the framework of the America Bar Association’s Center for Professional Responsibility. Within the American Bar Association’s Model Rules of Professional Conduct, there are several areas a criminal defense investigator should be familiar with and strictly adhere too.

The model rules strictly prohibit criminal acts, and “conduct involving dishonesty, fraud, deceit or misrepresentation.” The prohibition of criminal acts pertains to the moral and ethical conduct of the criminal defense investigator. To some extent, the same could be said for issues of dishonesty, fraud, deceit, or misrepresentation. However, in the tradecraft of investigation, these can occur easily. Investigators typically employ deceit and misrepresentation through the use of pretexts, personal legends, and flat-out lies to gain access to information or elicit statements from parties who would otherwise avoid contact with an investigator. These tactics are well known among licensed private investigators and are probably employed daily within the industry. However, a criminal defense investigator must be beyond reproach in this area. There can be strictly no use of dishonesty, fraud, deceit, or misrepresentation in the conduct of the criminal defense investigator.

At first glance, many licensed private investigators would cringe at the idea of being stripped of the tools of deceit or misrepresentation. However, a criminal defense investigator’s work must be completely overt. When a witness, law enforcement officer, or related party is contacted, they must be fully advised who the criminal defense investigator represents and in which criminal proceedings. There can simply be no misrepresentation of identity or fact.

Qualifications of a Criminal Defense Investigator

The following are general guidelines for the qualifications of a criminal defense investigator:

  • Properly licensed in the jurisdiction of practice
  • Highly experienced in investigative field operations
  • A formal education at no less than the bachelor’s level, however, a graduate level degree is preferred. A strong focuses on critical thinking, problem solving, and research should core to academic study.
  • Strong written and verbal communication skills cannot be overly stressed
  • Working knowledge of the 4th and 5th Amendments
  • Working knowledge of law enforcement procedures and applied practices as they relate to the full spectrum of criminal investigations
  • For the proper and successful performance of criminal defense investigations, the investigator must have specialized experience in the following areas in order to comprehensively complete a criminal defense investigation:
  • A fundamental understanding of the full spectrum of criminal acts as they relate to the criminal defense investigator’s specific practice
  • Highly developed interview skills
  • Public records research skills
  • Forensic photography skills
  • Ability to reconstruct crime scenes
  • Evidence collection and preservation techniques
  • Structured analysis methods
  • Counterintelligence
  • General social knowledge