Article by Mark Browne

Role of the Criminal Defense Investigator

The role of the criminal justice investigator in the criminal justice system has been ever changing throughout the years. Many people are not even aware that there are criminal justice investigators that are part of any law enforcement. During my many years of doing this profession, it truly amazes me how many people think that we are some sort of cops. Witnesses fear they are about to be arrested and call their attorney for fear that they are in trouble. So, if we are not cops, what are we? We are truth seekers! We do not have powers to arrest and we are glad that is the case. We protect the 6th amendment to be sure everyone gets a fair and speedy trial. So how do we do this? How do we find the truth? Where do criminal justice investigators come from? These are all the questions and more that I encounter when performing my job and even questions I answer in social situations. To answer the last question first, I would say that investigators come from all walks of life. Some are very inquisitive, some are prior law enforcement or military, and others just love to know a lot of information. Whatever the background, investigators care about one common goal and that is finding out what really happened. How do we go about doing this? First, I will start off by we do not have powers of arrest, we are unable to detain people, and we cannot make threats of the like. But throughout the course of our investigation, there are certain features of our job that are similar to law enforcement. A criminal defense investigator is brought on to a case because we are hired by a defense attorney. We are hired because the attorney feels that an investigation into a case is warranted based on facts, witness statements, police report, or just a hunch. When an investigator first comes on board, the first job is a case analysis which is the first step in the component method. This is the first and very detailed oriented part of the job. This involves reading police reports, witness lists and statements, viewing photographs, crime scene investigations, and reviewing any other documents that could be involved in the case. Analysis is the important word in the previous sentence as we don’t just read through the material, we analyze it, word by word, line by line, and page by page. We are looking for clues, discrepancies, leads, positive and negative information for the defendant, and also anything that may have been left out by Law Enforcement. So why do criminal investigators get involved if the case has already been researched and reported on by trained law enforcement. Well 2 reasons. The next statement is subjective and could be considered opinion, but it is the job of law enforcement to report the incident from the vantage point of the prosecutor or state. Some could possibly argue that they are biased and only looking for facts that support their cause. The other reason is that law enforcement may be typically strapped for time to investigate particular cases and once they find what they need, they discontinue the investigation and prepare for litigation. That is usually where the investigation ends for law enforcement but that does not mean every piece of information has been retrieved and documented. Not usually by a long shot. “The criminal Defense investigator must pursue evidence to disprove the elements of the alleged crime or at a minimum uncover evidence to support reasonable doubt.” The investigator is typically assigned many more hours than law enforcement and therefore has more time to dedicate to the investigation. That is the point of the investigator analysis. They must go through everything very diligently because there is a very good chance that something was missed. Let’s say Johnny Johnson was arrested for felony assault in his neighborhood. The police arrive and see the injuries on the victim. They interview the victim who says that Johnny Johnson was the culprit. They arrest Johnny Johnson and read him his Miranda Warnings and whisk him off to jail. This is a very common scenario to put someone in jail but there are major problems with this police investigation. Did they check Johnny Johnson to see if he had suffered any injuries? Were neighborhood witnesses interviewed? Typically, a fight in the middle of the street may have some witnesses. This is the role of the investigator. To come in and find out what was missed. In my experience so far, something has always been missed! Always! Then the investigator reads and analyzes the report to find out that nobody in the neighborhood was interviewed to be sure Johnny Johnson was the culprit and not just involved in a mutual combatant fight. “Remember, the defense is not burdened to prove that the defendant did not commit the alleged crime or act. The defense must reveal that the prosecution’s case is deficient in that it does not, beyond a reasonable doubt, establish the proper premise or foundation necessary to obtain a conviction”.  That is when the investigator, after going through all the information, has a visit with the defendant. 

The initial defendant interview is paramount to the process. This is the time for the defendant to explain in detail what happened that caused him to have been arrested. His information may or may not be in the police report depending on the circumstances of the crime and who took the report.  The information obtained from the defendant should be very informative starting with all of their personal information and be sure they have had a chance to review all of the information obtained in the discovery for their case. They must know all the charges and the information that is being used against them so they are able to articulate what happened to them and how they were involved in the case. Then it is about getting all the information regarding the case and seeing how it matches up with the discovery and all the information contained. It is after this point that everything stated by the defendant will be verified and witnesses interviewed, which is a few steps away.  Also, for the defendant interview and witness interviews to come later, I will throw in my opinion and state that it is good to either have formal training or experience on being able to at least mildly read deceit on people. I will soon obtain my CFI-FTER from your organization, but I had a lot of training in my law enforcement career. The only reason I bring this up because being able to read people is not always common sense. Obviously, therefore we do all the background checks and the verification of information is all true and good. But many cases I have worked, everything was verified, and I was still able to prove deceit from defendants, witnesses, and the victim. A background report and search won’t tell you what really happened without witnesses, screenings, etc. Some details require a keen eye from the interviewer/interrogator to see what might be wrong with the story as it is presented. A private investigator should be skilled at interviewing but is not always. Therefore, I always think it is good to get formal training and continue that training yearly to get better. Improvement in this profession is a must to keep up with the changing trends.

Crime scene investigation is the next component of the component method.  This, in my experience is a detailed part of the investigation. The photographs and diagrams are seemingly endless and are used to verify all the previously learned information. Good cameras but be used and 2D diagrams need to be drawn. A good crime scene investigation can make or break your case (well any element can), and it is super important to collect as much information as possible. It is also important to visit the crime scene at the same time of day as the incident occurred. I will throw in a little part from my own experience which I am sure has been experienced by other investigators. Many times, a crime scene is not available for review. In a case where I am currently working, the house was bulldozed before I was able to review it. It had been vacated and then for some reason bulldozed, so obviously the crime scene was unavailable. As a result, I was unable to diagram the bedroom where the alleged incident occurred. I was not able to verify the size of the bed where the incident occurred or see the dimensions. Now I went and found a floor plan to see some of the room and the house, but I could not verify evidence that was destroyed. Surprisingly, absolutely no photographs were taken of the crime scene by police or any other previous investigators. I say previous investigators because by the time I received the case, 2 different criminal investigators had worked this year-old case, and nothing in the way of photographs was taken which was disappointing and a little bit surprising. So, if this happens then that ultimately means the other 5 components should be very strong. On this particular case, witness interviews are going to be the key component out of the six.

The next component is the victim/witness background investigation. What is the purpose of looking into the background of the victim or witnesses? Well, many victims are dishonest with the way they report a crime. I am speaking of experience, but I will give a you a factual situation. I was investigating on a case on behalf of a male defendant. The victim was a female and his ex-girlfriend and the charge was aggravated assault. Now if you are anything like me, cases between exes can be red flags. It is not uncommon for people to file criminal charges against people for simply being angry at them and exacting revenge on a trumped charge. It happens a lot and is better revenge than a fight tor even murder. At least, that’s my opinion because jail is a horrible place. Back to the story which I will shorten. Turns out through evidence gathered by completing a medical sweep, it turns out that the supposed injuries had been received two days prior to the alleged incident in another town and treated by a hospital 100 miles away from where the defendant was located. It is very tough to punch someone in the face when they are 100 miles away. Always investigate the history of the victim. Drug history, arrest history, medical history, rental history, reputation within the community, and anything else to see the whole picture of the victim and witnesses. This will really help you to focus on your investigation and help the defense counsel. Then when you are interviewing witnesses, you will already have a lot of information about them, which leads us to component five. Now that the background checks have been completed on all the witnesses, it is time to find out what they know, if anything. Obviously with witnesses, some are better than others. I make my witness list, then while interviewing, I always ending up making another witness list that was not previously known to law enforcement or not researched. This information always comes from talking to the mentioned witnesses. Many of my witness interviews are impromptu because I show up at their door after they refuse to answer my call or return my voicemail. I am prepared for those interviews; however, the witnesses are not, which can play to the investigators advantage. That leaves them less time to prepare their fabrication and talk to other people to prepare a statement. Appointment interviews are always a great source of information but typically come from people who are close to either the victim or witness or character witness interviews. These are all paramount to verifying the old information but more importantly, finding out new information. On my typical case, I spend upwards of 30 hours in interviews alone and get some great information most of the time. 

After obtaining all the information, now is the time to organize everything into a report so that whoever reads it, knows exactly what happened step by step. Which can be a very difficult task. “Report writing is not only one of the most important elements of a criminal defense investigation, but often the most problematic for most criminal defense investigators”.  This is by far the toughest but is made easier by taking good notes and staying organized throughout the entire investigation. The need for categories and is paramount as is reporting all the facts uncovered throughout the investigation, which includes all 5 components leading up to this last one.  This report could be read by anyone associated with the case and could be quoted during litigation.  Being sure the report is thorough and concise is extremely important. This will ensure that all your findings are included, and nothing is left out which will keep your defense attorneys happy and continue to use you on their cases to generate money and stay in business.