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 Theory of Criminal Defense Investigation

A criminal defense investigator spends their professional life immersed in issues of fact and fiction; without a framework, discerning between them can become a very abstract process. In simple terms, the criminal defense investigator’s work includes sorting, measuring, and analyzing a huge amount of information. On a small scale this process can be overwhelming. Without a framework the practitioner is left to their own devices. The most usable framework is a working theory that remains flexible in its application from case to case.

Much like other private investigators, a criminal defense investigator is a broker of information. After all the hard work, critical thinking, and processing of information, the end result are simple written reports and a verbal briefing to the responsible criminal defense attorney. The critical concept in brokering information is knowing what is important and what is not. This can be difficult to discern for even the most experienced criminal defense investigator.

From the beginning of a criminal defense investigation, the responsible criminal defense attorney should be made aware of all information, with some exceptions. Any available information related to the defense of the accused should be made available. In terms of what should be included in written reports, non-critical tasks of making telephone calls to locate witnesses or trivial issues like which routes were driven during the investigation are of little value to the attorney. However, beyond this trivial information, every piece of information and its source should be made available to the criminal defense attorney. This includes both positive and negative information. Some investigators initially entering the criminal defense arena may balk at the idea of delivering information that may harm the defense to the responsible attorney, for example, information showing guilt. However, this type of information is by far as valuable as information showing innocence. When preparing for trial, the responsible criminal defense attorney must be aware of all available information in order to plan an intelligent argument. The criminal defense investigator should not make assumptions regarding what the criminal defense attorney may require. Needs will change during the lifespan of the defense, which may cause otherwise useless information to emerge as valuable.

The critical question is what type of information should be obtained. Without a proper collection theory or formal framework, figuring this out can be a very taxing process. Fortunately, a simple collection theory is adequate. This is a two-pronged approach comprised of a two-stage process. The first stage is the primary collection of information that is evidence of innocence. The second stage is the collection of information that discredits evidence of guilt. In simple terms, the primary goal is the collection of information proving the defendant’s innocence. This collection theory is strictly followed and implemented through a wide array of methods.

In this book, collection theory refers to the process of collecting information. “Collection” is the process of collecting raw information that has not undergone some form of analysis. Although the term “collection” has not been traditionally used in the area of criminal investigation by practitioners in law enforcement or for-profit investigations, it is more definitive as to the stage of the investigation compared to the overall process of investigation.

In the two-pronged approach of collection, gathering evidence of innocence is the primary collection operation, done in order to discredit the State’s criminal theory. In general, the State’s criminal theory is not designed solely by the prosecutor as a rational independent actor. Instead, it is initially generated during law enforcement’s criminal investigation. A brief review of law enforcement reporting will reveal the State's criminal theory with some marginal limitations, including the prosecutor's argumentative strategy when opposing the criminal defense attorney in court. These limitations to understanding the State's criminal theory are expected and can only be resolved as the criminal case progresses through the criminal justice system.

Beyond law enforcement reporting, the State's criminal theory will rest upon items of evidence, which are interpreted through the narrative constructed by law enforcement reporting and testimony in court. These items will range from written or recorded interviews to varying forms of evidence. In theory, all forms of evidence should be fully documented in law enforcement reporting. However, at times, because of errors, denial and deception, or bias recovered evidence will go undocumented in law enforcement reporting. The evidence may still be presented in the discovery file, or an indication of the evidence's existence may emerge through related evidence. For example, an audio recording made during a witness interview may contain the sound of a camera operation, but no photographs were provided by the State during discovery. A wide array of reasons can exist for this type of occurrence. Nevertheless, the criminal defense investigator's goal must be to obtain all evidence items in the State's possession. The key is knowing specifically what to request. This becomes especially important when the State is less than forthcoming. In practice, the criminal defense investigator will communicate the need for a discovery request to the responsible criminal defense attorney who will, in turn, engage the court.

The State's criminal theory will be driven by law enforcement and then augmented by the prosecutor. Bias is a significant aspect in law enforcement generating the initial raw criminal theory. During law enforcement’s criminal investigation a considerable amount of evidence will be engaged and assessed, and then a limited amount of this evidence will be collected and documented in official law enforcement reporting. The problem with assessing evidence is that the process is based on perception, which is directly impacted by bias. As a result, during the law enforcement investigation, evidence that does not support the investigator's criminal theory is discounted as unrelated or simply ignored. Thus, important evidence, all too often, will not be collected and documented.

Uncollected and undocumented evidence is a critical issue for a criminal defense investigator. How does a criminal defense investigator uncover evidence that has been ignored by law enforcement? This process is comprised of reviewing the State’s physical and testimonial evidence. Typically, physical evidence is simply reinterpreted and witness testimony recollected by the criminal defense investigator. Based upon the criminal defense investigator's interpretation of evidence and direct knowledge of witness testimony, an array of alternate criminal theories or an alternate evidence theory is generated, leading to a search for and collection of new or undocumented evidence. The initial primary goal should be the review of State evidence, followed by the uncovering of new or undisclosed evidence. At the onset of any criminal defense case, the primary analytical concern should be evidence of innocence in opposition to the State’s evidence supporting the criminal case.

After reviewing and collecting new evidence, the second prong is used. The credibility of all known evidence is accessed, and discrediting information is collected. Based upon the author's professional experience, opinions differ on this aspect of a criminal defense investigation. In one view, the primary credibility concern should be that of the State's criminal theory, and all discrediting information should be collected. The opposing view is an approach that tests the credibility of all evidence, used both in the State’s case and in the alternate evidence theory. The latter seems to be the most logical approach. When there is evidence proving guilt and an absence of evidence supporting innocence, the only option available is to discredit the evidence of guilt. On the other hand, evidence supporting an alternative criminal theory, which might include an alternative suspect, poses an additional risk. If this evidence is successfully challenged by the prosecutor than only the evidence brought forth by the State remains. Knowing the credibility of evidence supporting alternative theories is a matter of eliminating bias and possibly avoiding catastrophic failure in the defense of the accused.

The implementation of the two-pronged approach is not linear but an intertwined process of collection and analysis. This process produces a professional work product and is only successfully conducted by skilled practitioners. The criminal defense investigator is faced with many issues in the collection of information and the ensuing analysis. This book is not meant to address collection issues specifically. These issues are vast and vary from case to case. In reality, no written document could address the subject completely. In turn, practitioners rely on professional experience, local knowledge, and peer collaboration to address specific collection issues. However, specific issues in the area of analysis are within the reach of this book. Collection will be addressed but not on the level of “how” the information is collected; instead, this book considers collection needs driven by the demands of analysis.