By Mark C. Cohrs
Senior Investigator for
The Gasper Law Group
A necessary part of providing legal representation to defendants charged with a criminal offense is the task of evaluating the evidence against the client. The Constitutional concept of “innocent until proven guilty” is not always a reality when a person is accused of committing a crime.
Oftentimes, even well intended officers who are dispatched to investigate alleged offenses tend to react primarily on the basis of probable cause, while giving little or no consideration to mitigating or extenuating circumstances.
Beyond that, the evolution of governing mandates regarding Domestic Violence response practices have caused police agencies to adopt arrest procedures based on the fact that someone called the police, therefore someone has to go to jail. Right or wrong, defendants charged in criminal cases are typically faced with the burden of either trying to prove their innocence or to minimize their exposure in the criminal justice system.
Competent criminal defense attorneys recognize the necessity to investigate the government’s evidence before advising their clients of their options. One of the most effective means of accomplishing this is to employ the services of a reputable and experienced private investigator, preferably someone with a law enforcement background.
The investigator should possess both analytical and communication skills, along with a vast working knowledge of standard police procedures and court proceedings. An effective investigator will be able to review the discovery and identify potential defense issues, such as search and seizure violations, Miranda violations, or evidence integrity concerns. He or she should additionally be able to recognize inconsistent or illogical statements that have been provided by victims or witnesses to the reporting officer(s). The experienced investigator recognizes that law enforcement reporting formats generally consist of paraphrased information, as opposed to a direct transcript of the witness’ exact statements. With that dynamic in mind, the investigator should consider that the paraphrased statement doesn’t necessarily represent the entire statement, or the context in which the witness intended. Therefore the experienced investigator not only needs to identify all perceiving witnesses, but also needs to attempt to conduct their own interview of those persons, with the objective of qualifying the information that the witness provided, as well as to confirm the context in which the information was provided.
A competent investigator should also possess the personality traits that enable him or her to maintain a working relationship with both the attorney and the client. While investigators are not typically qualified to provide legal advice, he or she should be able to participate in the process of assisting the attorney and the client in evaluating the evidence, the risks of success at trial and assessing the value of plea offers during the negotiation process. Another valuable service that a competent investigator can provide is the participation as an advisory witness during various court proceedings, essentially acting as a silent assistant to the attorney. The use of an advisory witness is typically authorized by the court for persons such as the investigating police officer or the qualified defense investigator on the premise that they possess an intimate knowledge about the case. Although they are not allowed to verbally participate in the actual court proceedings, advisory witnesses are afforded direct access to the attorney, and are typically deemed to be exempt from sequestration requirements. That exemption allows them to hear testimony of other witnesses while still affording them the potential ability to testify during that proceeding, usually in a rebuttal capacity.
Another consideration for employing the use of a criminal defense investigator is that of their ability to testify in a rebuttal capacity. Although the practice of attorneys conducting interviews of witnesses in advance of court proceedings is entirely acceptable, a problem arises in the court room when the testimony of the witness varies from their prior statement. The attorney can confront the witness about the inconsistency, but the attorney cannot offer direct testimony in support of the inconsistency. One hearsay exception is usually that of rebuttal testimony that can be offered by an investigator who directly witnessed the prior statement now in question. With that in mind, the reputation and credibility of the investigator can be brought in to play by the other side once the investigator takes the stand. Therefore, favorable character and reputation needs to be a major consideration for defense attorneys who employ the services of as investigator. And, since the state of Colorado does not mandate licensing for private investigators, any unlawful or unethical conduct of investigators who are acting as an agent for licensed attorneys, can and likely will provide a liability problem for their attorney employers. With that in mind, credibility, character and experience should clearly be the main considerations for attorneys and their clients who are pursing the services of a criminal defense investigator.