Modes of Investigation

By Clayton T. Robertson (Criminal Defense/Civil Rights Attorney)

You may ask why an attorney is writing a blog on "modes of investigation." Simple. The best attorneys, not to mention the best criminal defense attorneys, know the importance of investigation. I've always said in a different life I'd be an investigator (and possibly an FBI agent, but let's save that for another blog as it might bother my criminal defense brethren). F. Lee Bailey, one of America's most famous criminal defense attorneys in the latter half of the twentieth century, started his career as an investigator before obtaining his law license. It paid off for him. He also became famous.

In criminal defense, we often need to conduct a parallel investigation to what law enforcement either has already done, or is doing. When they are still doing it, that means the case is likely in "pre-file" status. They are still working up the case to submit to the DA. That means we need to try to talk to the same witnesses (if possible), examine the same physical evidence (although law enforcement has the advantage of obtaining search warrants and the defense lacks subpoena power until a case is filed in court), conduct social media searches, run background checks, and other must-do tasks.

So, this brings us to the topic. From a big-picture perspective, there are three "modes" of investigation: reactive, proactive, and preventative. These modes are often viewed from the perspective of law enforcement (and I've seen at least one presentation on that exact topic). However, I'll address each mode from the perspective of the defense.

Reactive: This is not where you want to be, but it is often what an attorney is doing if a case has already been filed and they are attempting to back-track to assess what has already been done by law enforcement. You are responding to what was done and attempting to patch together a responsive investigation. That's not great, but it's often necessary. You are tracking down details of what law enforcement discovered to verify or question those details, you are interviewing witnesses they interviewed, examining evidence they already collected, assessing chain of custody, evaluating forensic reports, etc. However, it's not all reactive. This brings us to the next mode.

Proactive: This occurs chiefly in two scenarios. First, for a case that has already been filed, such as the example above, you are branching off from the "reactive" component of the investigation into new areas -- e.g., finding and interviewing new witnesses, obtaining new evidence, conducting new tests (forensic or otherwise), etc. In that sense, if the reactive transitions to the proactive, your attorney is doing their job. The second proactive scenario occurs during a pre-file representation before a case has been filed. Here, your attorney is looking for evidence to exculpate or vindicate you (i.e., to show that you are innocent) to potentially present to law enforcement or the district attorney's office to try to convince them not to file a case.

Preventative: This one is interesting. From law enforcement's perspective, this is focused on aggressively deterring future criminal conduct by conducting a good investigation and arresting the correct persons. That's easier said than done, as we all know. So what about from the defense's perspective? A preventative response by a capable defense attorney again is principally two-fold. First, in any given case, by demonstrating to the district attorney, and by extension to law enforcement, either informally or at a hearing or trial, that a particular investigation was shoddy or incomplete, one hopes you deter future bad investigations, which serves the interests of justice. If only that were always the case. Law enforcement tends to do the same old, same old, but there are exceptions -- and when they occur, that officer earns my respect.

The second form of a preventative investigation is to attempt to mitigate whatever harm has already been done, not just by law enforcement but potentially also by your client. We've discussed mistakes by law enforcement, but what about your client? Frankly, your client might be digging a hole for themselves even during your representation. You find out they are talking to others about the incident, which they shouldn't be doing. You advise them to stop talking to anyone other than their attorney (indeed, the phrase is to "shut the f*ck up"). Or you find out that they are posting online about the incident. In that case, there are ethical rules, but you may potentially advise them to privatize their social media accounts or other appropriate options. (That topic exceeds the scope of this blog.) These are only a few examples. The goal is to stop or mitigate damage already done.

This is a long blog, but you get the sense of why a properly performed investigation is multi-faceted and nuanced. Some parts also go more quickly than others. You want an attorney who not only values the benefits of a thorough investigation, but who also understands its various purposes. With that, you are in good hands.