Criminal Law Resources: Criminal Defense InvestigationBy Ken Strutin, Published on January 21, 2008
Investigation is a cornerstone of criminal defense work. See Part IV Investigation and Preparation in ABA Standards for Criminal Justice: Prosecution and Defense Function (3rd ed 1993). And the role of the investigator is central to every important step in the process from case preparation to post-conviction challenges. This article aims to highlight select online resources describing defense investigation standards and practices, training and certification options, and to point out some useful guides and educational materials.
"The Criminal Defense Investigation Training Council was established to encourage a dialogue among professionals and scholars involved in various aspects of criminal defense investigation. The Council exists as an open forum in which investigative philosophy, methodology, education, and principles of ethical inquiry can be considered via academic training programs, discussions, debate, and writings. The Council is actively pursuing the goals of professional competence and academic excellence via the Board Certified Criminal Defense Investigator program and the Training Accreditation Program. The Council encourages professionals actively engaged in the discipline of Criminal Defense Investigation to join the Council and pursue the designation of Board Certified Criminal Defense Investigator."
"This is a list dedicated to licensed criminal defense investigators and criminal defense attorneys as well as public defenders. Topics on this list include but not limited to: homicide investigation, unexplained deaths, forensics, interviews and interrogations, criminal law and procedure. Supreme Court rulings, etc."
"In 1966, Public Defender Investigators from various California Public Defender Offices created the Defense Investigators Association. Today, DIA serves both Public Defender Investigators and other Criminal Defense Investigators. The Association was created to: Promote the interests of Criminal Defense Investigation; Provide Training and Certification Opportunities; Provide a network between Criminal Defense Investigators for the exchange of information and ideas"
"The National Association of Legal Investigators (NALI) was formed in 1967 with its primary focus to conduct investigations related to litigation. Membership in NALI is open to all professional legal investigators who are actively engaged in negligence investigations for the plaintiff and/or criminal defense, and who are employed by investigative firms, law firms or public defender agencies. An applicant must have a minimum of 24 months of documented full-time employment in this endeavor."
"The National Defender Investigator Association (NDIA) is the only national organization to represent a constituency dedicated solely to the investigative arm of indigent defense. The NDIA also has had long established liaisons with the National Legal Aid and Defender Association and the National Association of Criminal Defense Lawyers. The NDIA also maintains close contact and liaisons with a number of other Defender Associations and Defender Investigator Associations across the country and has provided input and leadership toward the establishment of these types of organizations in a number of states"
"The Texas Criminal Defense Investigators' Association is an organization of Texas Licensed Investigators who have demonstrated themselves to be qualified by knowledge and experience to perform capital murder defense investigations as well as defense investigations of lesser felony charges. The members of the association swear allegiance to the Bill of Rights of the United States Constitution and promise to fight the good fight to preserve and maintain the rights of citizens of the United States of America and specifically those persons in the State of Texas who are accused of crimes by the government of this state."
Ethics and Standards
Board Certified Criminal Defense Investigator (Criminal Defense Investigation Training Council)
"The following standards have been approved by the Executive Council of the Criminal Defense Investigation Training Council as the minimum requirements for being awarded the designation of a Board Certified Criminal Defense Investigator or CCDI The CCDI designation is awarded to professional criminal defense investigators who have met the minimum training and experience requirements required to perform effectively within the discipline of criminal defense investigation as an expert. Investigators seeking the CCDI designation are evaluated by the Academic Director and Executive Council on an individual basis. The applicants must meet the minimum requirements enacted by the board in order to qualify for the CCDI designation."
Performance Guidelines for Certified Criminal Defense Investigators in Capital Defense Cases (Texas Criminal Defense Investigators' Association)
"Based upon the principle of law that every person is presumed to be innocent until proven guilty and in accordance with the spirit of the law of the Bill of Rights of the United States Constitution, the Texas Constitution, and the Fair Defense Act passed by the Texas Legislature in 2001, the singular mission of the members of this Texas Criminal Defense Investigator’s Association shall be to perform efficient, ethical, and exhaustive defense investigations on behalf of persons who have been charged with capital crimes in Texas. Each member of TCDIA swears allegiance to the Bill of Rights of the United States Constitution and gives his solemn oath to assure due process for any person who is charged with a capital crime in the State of Texas."
"In New York, while it is generally unethical for a non-government lawyer to knowingly utilize and/or supervise an investigator who will employ dissemblance in an investigation, we conclude that it is ethically permissible in a small number of exceptional circumstances where the dissemblance by investigators is limited to identity and purpose and involves otherwise lawful activity undertaken solely for the purpose of gathering evidence. Even in these cases, a lawyer supervising investigators who dissemble would be acting unethically unless (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably and readily available through other lawful means; and (iii) the lawyer’s conduct and the investigator’s conduct that the lawyer is supervising do not otherwise violate the New York Lawyer’s Code of Professional Responsibility (the "Code") or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties. These conditions are narrow. Attorneys must be cautious in applying them to different situations. In most cases, the ethical bounds of permissible conduct will be limited to situations involving the virtual necessity of non-attorney investigator(s) posing as an ordinary consumer(s) engaged in an otherwise lawful transaction in order to obtain basic information not otherwise available. This opinion does not address the separate question of direction of investigations by government lawyers supervising law enforcement personnel where additional considerations, statutory duties and precedents may be relevant. This opinion also does not address whether a lawyer is ever permitted to make dissembling statements directly himself or herself."
State of Georgia Performance Standards for Criminal Defense Investigators in Indigent Criminal Cases (Georgia Public Defenders Standards Council)
"The Performance Standards for Criminal Defense Representation in Indigent Criminal Cases are promulgated by the Georgia Public Defender Standards Council pursuant to the statutory authority of OCGA 17-12-8. The standards are designed to serve a number of purposes. First and foremost to encourage criminal defense attorneys in indigent cases to perform to a high standard of representation and to promote professionalism in the representation of indigent defendants. The Standards are intended to alert investigators assigned to assist in the defense of indigent defendants to courses of action that may be necessary, advisable, or appropriate, and thereby to assist the investigators in deciding upon the particular actions that should be taken in each case to ensure that the client receives the best representation possible. The Standards are also intended to provide a measure by which the Standards Council can evaluate the performance of individual attorneys and circuit public defender offices, and to assist the Standards Council in training and supervising criminal defense investigators."
Training and Continuing Education
Criminal Defense Investigation Certificate Program and Brochure (DePaul University)
"The Criminal Defense Investigation Certificate provides intensive training to investigators, paralegals and anyone who is interested in learning the skills necessary to competently conduct criminal defense investigations. This course helps individuals to be more professional and effective defense investigators, and allows organizations to create a highly effective investigation team. Classes will be held at our downtown Chicago campus, but can also be customized and offered on-site at your organization’s location."
Office of Defender Services Training Programs (see investigator sessions)
"The programs described below are Training Branch events designed for appointed counsel, and other professionals who assist appointed counsel, in federal criminal cases. Registration for each of these programs is free. The page is divided into programs for panel attorneys, programs for federal defender staff (which are coordinated through the Federal Judicial Center), and programs for both panel attorneys and federal defender staff. In addition, at the bottom of the page we have included links to training events offered by Federal Defender or Community Defender organizations, and organizations such as the National Association of Criminal Defense Lawyers."
Southern Public Defender Training Center (see investigator sessions)
"The Southern Public Defender Training Center (SPDTC) is an organization committed to providing training to new public defenders throughout the south. SPDTC offers a three-year training curriculum designed for public defenders with less than three years of experience representing indigent defendants."
"The need to standardize and develop an investigative philosophy and methodology specific to the discipline of criminal defense investigation has been the subject of much research and debate. The answer to the problem was culminated by a joint effort between the public defender system and the private investigation profession. The Component Method was developed to provide public defender investigators and private sector investigators with a formula for conducting successful and comprehensive criminal defense assignments. The Component Method utilizes accepted and proven investigative procedure in an easy to follow format. Each component of the investigation process is designed to uncover leads and develop questions leading to the next component. The subsequent components support the investigator’s efforts to track leads and answer questions developed in previous components. Utilization of the Component Method allows the criminal defense investigator to begin and end an investigation with the knowledge and confidence that an effective and professional investigation was completed."
"A carefully planned and proper defense investigation in a criminal case can lead to a number of favorable results. The best result, of course, is proof that the client is innocent of the charge. That is the ultimate goal. The next best result is evidence. The criminal defense investigator must look at developing evidence, which may create reasonable doubt among the juror’s as to the client’s guilt. The evidence may show that the client is guilty, but of a lesser degree of the crime charged. The defense investigation may also show that the client’s constitutional rights were violated."
"Interviewing witnesses, assessing their credibility, presentation, and impression, and taking their statements is an extremely important function of the criminal defense investigator and should be accomplished as soon as possible after review of all file and discovery materials. Most of the defense investigator's time will be consumed by this phase of any investigation, which, arguably, is the most important phase. Preparation is the key to a successful witness interview and statement, so make it a point to adequately prepare prior to the interview."
Investigating and Trying a Homicide Case, The Champion, Sept./Oct. 1998 at 14
"There is something about getting a new case, any case, that we have all felt. Interest, dread, hope that it is a 'good one' (whatever that might mean), fear that it is a big loser and of course the fear that something we will do (or fail to do) may cost the client his freedom or even his life. In no case do these fears play a larger role than in a homicide case. The stakes are high for the client, they are high for us, and the odds are this is a case we will try. This article will address some of these concerns; its intent is to help you to prepare a homicide case for trial. I have always found the hard work in preparing a case for trial to be the best palliative for fear, and my best ally in the courtroom."
National Criminal Background Checks: Myths, Realities & Resources (Virtual Chase 2007)
"Anyone who has been asked to conduct a 'national criminal background check' knows the sinking feeling that comes from facing the requestor's confident assumption that such a request is reasonable, possible, inexpensive, and fast. When a Google search brings up dozens of hits containing words like comprehensive, instant results, free, and all 50 states, it is easy to see where that confident assumption comes from. Where to start to explain all the caveats, cautions, costs, and prohibitions? No central repository exists for federal, state, and local ... criminal records."
Role of the Defense Investigator (CDITC)
"A Defense Investigator fulfills one of the most important roles on the defense team. The investigator’s job is to verify and validate all that has been done by the investigating police department. With that in mind, the investigator has to have accumulated some training or experience which would allow him or her to recognize where any errors or omissions have occurred or to indicate that all proper procedures were adhered to during the investigation. Know what the standards are! The investigator has to talk to each witness and to review and verify all evidence, physical, verbal, video, etc., that will be used by the prosecution."
Reports, Guides and Practice Materials
"This guide is intended for use by law enforcement and other responders who have responsibility for protecting crime scenes, preserving physical evidence, and collecting and submitting the evidence for scientific examination. Physical evidence has the potential to play a critical role in the overall investigation and resolution of a suspected criminal act. Realization of this potential depends on actions taken early in the criminal investigation at the crime scene. Developments in technology and improvements in the analysis and interpretation of physical evidence recovered from crime scenes will place even greater importance on properly documented and preserved evidence. An important factor influencing the ultimate legal significance of this scientific evidence is that investigators follow an objective, thorough, and thoughtful approach. The goal of this process is to recognize and preserve physical evidence that will yield reliable information to aid in the investigation."
"In many jurisdictions, responsibility for conducting death investigations may rest with pathologists, medical examiners, or coroners, in addition to their other duties. There is little training available in the best procedures for handling these crucial and sensitive tasks. To help fill the gap, the National Institute of Justice, joined by the Centers for Disease Control and Prevention and the Bureau of Justice Assistance, supported the development of the guidelines presented in this report."
"In August 2000, the North Carolina General Assembly passed the Indigent Defense Services Act of 2000 ('IDS Act'), which created the Office of Indigent Defense Services ('IDS Office') and its 13-member governing body, the Commission on Indigent Defense Services ('IDS Commission'). On July 1, 2001, IDS assumed a number of responsibilities, including: 1) overseeing the provision of legal representation to indigent defendants and others entitled to counsel under North Carolina law; 2) developing training, qualification, and performance standards to govern the provision of legal services to indigent persons; 3) determining the most appropriate methods of delivering legal services to indigent persons in each judicial district; and 4) providing services in the most cost-effective manner possible."
- Client Interviewing from New Misdemeanor Defender Training
- Looking for a Needle in a Haystack from Defending Child Sexual Abuse Cases
- Sample Interview Sheet from New Misdemeanor Defender Program
- Training and Reference Materials Index
"PDI Network, a collection of (hopefully) useful links for criminal defense investigators, especially those who work for indigent defendants."
"The mission of the Public Defender Service for the District of Columbia is to provide and promote quality legal representation to indigent adults and children facing a loss of liberty in the District of Columbia and thereby protect society's interest in the fair administration of justice. The Public Defender Service for the District of Columbia (PDS) enjoys a national reputation for excellence in the delivery of indigent defense services and is often cited as a model for other public defender agencies."
Investigation Manual (Andrea D. Lyon, ed: Office of the State Appellate Defender of Illinois & Center for Justice in Capital Cases, DePaul University College of Law 2004)
"The Investigation Manual covers various investigative techniques and resources for defense attorneys and investigators."
"A comprehensive guide for the criminal defense investigator. The philosophical and methodical approaches to the discipline of criminal defense investigation are discussed and presented in an easy to follow format. Written for public defender investigators and private investigators engaged in the field of criminal defense investigation. Includes, case studies, diagrams, and checklists."
|Uncovering Reasonable Doubt: The Component Method|
Author: Brandon A. Perron
List price: $38.00 USD
Amazon price: $38.00 USD