The "Psychic" Investigator
Updated: May 22, 2021
By Clayton T. Robertson (Criminal Defense / Civil Litigation Attorney)
From a recent Federal Defender (fd.org) criminal defense presentation: "Narrative art lives in small details woven through large emotions."
I agree. This is trial preparation in a nutshell -- i.e., emotional themes and frames, but no detail too small as part of the investigative, fact-gathering process.
There are ways a good defense team can locate other facts that support your case that might otherwise have been missed. This process avoids "the same old thinking, the same old results" syndrome.
Sherlock Holmes was exceptionally skilled at applying what, in real life, I call "inductive/deductive looping." The process is similar to the process used by psychics, who aren't really psychic -- the good ones possess an ability to perceive and connect details others overlook to create a "story" that resonates with you. They ask you additional questions to subtly probe the accuracy of their initial impressions, they filter out inaccurate details, they observe your body language, and they then reinforce the accurate portions of their observations through an iterative feedback process.
What is "inductive/deductive looping"? It consists of actively perceiving the presence or absence of details, inducing "what ifs" from those details, then searching deductively for the additional details that should (or should not) exist given a hypothetical "what if" state of affairs -- e.g., "if this witness is telling the truth, then I would expect the following 'facts' to also be present" or "if the incident occurred in this particular manner, then I would expect these other events to have occurred." Are those facts or events present or not? Are the missing facts or events necessary to your theory of what happened? What other avenues of investigation are created by the facts you discover? (Incidentally, in a separate article on effective cross-examination techniques, I'll discuss the application of inductive/deductive looping to create devastating cross examinations.)
The looping process is simple and repeats itself through several fact-gathering iterations: (1) an "investigative mindset" with an obsessive attention to detail, (2) an ability to perceive connections among those details, (3) an ability inductively to form hypotheses based on those details (i.e., given these known facts or given my theory of the case, what else should be true?), (4) testing those hypotheses deductively by looking for those additional "facts" that should (or should not) exist given that proposed state of affairs, and (5) reformulating or recalibrating your hypotheses based on the outcome of this inductive/deductive looping process. If these other facts don't exist, then how does the narrative change? What makes more sense? What else could be true? And, most importantly, which of these proposed hypothetical states best supports your theory of what happened?
At its best, inductive/deductive looping also requires other skills. In addition to a keen attention to detail, it is indispensable to know how to read a person's body language (including the tone of their voice). Most communication occurs outside of the words or text used by the sender. In many instances, much like a lie detector test, it also helps to have "baselined" the person. "Baselining" is observing how the person normally acts, particularly how they act when you know they are telling the truth. You can baseline someone from past experiences, or from other parts of the same interaction. This then allows you to detect deviations from their normal communication (or body language) patterns to evaluate their credibility. Also, much of this evaluative process occurs at not just an analytical level, but at an emotive or intuitive level. In other words, trust your gut instincts.
As the above quote suggests, it is the acquisition of facts -- and the integration of facts and emotions -- that provides the greatest insights.
For a related blog by me, see here ("Body Language in Criminal Defense"): https://www.robertsonlitigation.com/post/body-language-101
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