The Defense Investigator's Role

The Defense Investigator’s Role

By Michael O. Hawkins, J.D.

The Hawkins Group – Investigations

Edmonds, WA

While all criminal cases do not require the services of a professional investigator, in those that do, the investigator is one of the most important members of the defense team. The investigator has several different, but equally important functions in preparing for an effective defense to the government’s charges.

One of the first things that the investigator must do is to verify and validate the investigation conducted by law enforcement officers and agencies. Far too often, police identify a suspect and then seek to build a prosecutable case against that individual. In doing this, they sometimes slant information or cast information in the light most harmful to the defendant. A criminal defense investigator will review the police investigation and re-interview witnesses to find changes in their stories and to develop new and independent leads.
Seeking out new and unidentified witnesses is just as vital in preparing the defense case. These new witnesses often provide information that contradicts the “facts” upon which the prosecution is basing its case.
Having the ability to properly evaluate witnesses both as to their truthfulness and veracity, as well as the image that they will convey to a jury should they be called upon to testify. This often requires the investigator to learn about each witness in order to discover if there is anything in their personal background and/or their physical or mental condition that can be used effectively either to bolster or attack their testimony.

To accomplish this effectively, the investigator must have the training and experience allowing him to recognize where any law enforcement errors or omissions have occurred and to assure that all proper procedures were followed during the police investigation. The investigator must talk to each witness, review all the evidence (physical, verbal, video/photographic, etc) that was accumulated by the prosecution. In conducting witness interviews, the investigator must have the knowledge, skills and abilities to do effective interviews. This means that the investigator must be knowledgeable about the case and skilled in interviewing techniques including utilizing cognitive, kinesic and other interviewing methodologies.

These “Defense” interviews must also be correctly and totally recorded without bias in order to provide accurate and complete information to the Defense Counsel. In this respect the investigator must have the ability to write clearly and have the ability to exclude personal opinions from his interview reports.

In addition to the necessary skills, an effective Defense Investigator must have the personality traits and self-confidence to work independently without direct supervision or direction from the Defense Attorney. He must also have the ability to interpret the necessary statutes and/or policies involved in the case as the need arises. Effective investigators have developed the skills necessary to review evidence and reports and determine whether or not what the prosecution claims is consistent, accurate, and truthful. It is not uncommon for a skilled investigator to uncover inconsistencies or unusual information in reports that will give rise to avenues of investigation favorable to the defense. For example a police officer’s report of what was found at the scene may not be what is shown in the crime scene photographs. This could lead to an effective cross-examination of the officer and/or the possible suppression of evidence. It is not unusual for an investigator to discover that what has been reported by the police as “fact” is not what in actuality happened once that report is checked by the investigator.

While an investigator is not expected to be an all knowing, omnipotent person, his experience should have provided him with a broad knowledge base. For example, he must have some knowledge of serums and blood stains, human anatomy, ballistics, firearms and forensics. He must also understand crime scene reconstruction, photography and evidence collection procedures. In addition, a good investigator will also know how to conduct research, locate governmental records, utilize computers and will have a working knowledge of criminal law and procedures.

Effective investigators also have developed a networking system with other investigators in order to be able to utilize the services of other investigators in other jurisdictions should it become necessary to locate a witness or conduct other investigative activities when required. This networking ability also aids the investigator when he is called upon to locate expert witnesses necessary to assist in the case.

An Investigator must have a total understanding and working knowledge of the Rules of Evidence so that he will be able to obtain and preserve evidence that will be admissible at trial. This includes understanding the rules concerning privileges, hearsay, admissions, confessions and co-conspirator statements, declarations against interest as well as those made as part of the res geste of the crime or incident being investigated.

Professional investigators also know and follow high ethical standards in all of their activities. This knowledge must also include an understanding of the Legal Canons of Ethics and how the investigator’s actions may impact upon the attorney for whom he is working. For example an investigator working for one of several defendants, must understand that he cannot interview the co-defendants without first obtaining their attorney’s approval.

Investigators may also play an important role at the trial of the case. In addition to being called upon to testify, the investigator may also have to conduct additional investigative activities demanded by testimony and/or evidence admitted during the course of the trial.

Defense attorneys who utilize the services of an experienced, professional private investigator to assist in the preparation of criminal cases have learned that the benefits to be derived from such assistance are invaluable to them and to their clients. Experienced investigators often suggest alternate theories of the crime, provide insight into the government’s case, and overall help shape the successful defense. It will serve an investigator well to remember the words of former NBC News Anchorman, David Brinkley who said: A successful man is one who can lay a firm foundation with the bricks others have thrown at him. Take what the prosecution throws at you and use it to build the foundation for a successful defense.

Michael O. Hawkins is an experienced trial attorney having practiced law for fifteen years prior to becoming an Agent for the Naval Investigative Service (NIS). With NIS he conducted felony level criminal investigations and counter-espionage investigations in Charleston, S.C., Camp LeJeune, N.C., Rota, Spain, Naples and La Madellana, Italy, Keflavik, Iceland and in Panama. He then went to the Federal Law Enforcement Training Center (FLETC) as a Senior Instructor in the Legal Division and soon became responsible for running that division and then the Behavioral Science Division. He also served as an Adjunct Instructor at the International Law Enforcement Academy (ILEA) in Budapest, Hungry training mid and upper level law enforcement from the former Soviet Block countries. Mr. Hawkins is currently a licensed private investigator in the State of Washington where he operates The Hawkins Group conducting both criminal and civil investigative sevices for attorneys.