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FAQ: Colorado Criminal Defense Tactics – The Effective Use of Private Criminal Investigators – Detectives

It has been my experience that if a client charged in a Colorado Criminal Case with serious crimes – the use of an investigator cannot be understated. “Breaking” a case often means locating witnesses – evidence – essentially the “other side of the story.” While a criminal defense lawyer can do some of the investigation – their job is to act as advocates in court… to attack the case in court and within negotiations if plea bargaining becomes necessary

Choosing to Use an Colorado Criminal Case Investigator for Interviewing Witnesses

An adequate defense requires thorough investigation of the facts both to learn what the prosecution witnesses will say and to find and bring to court defense witnesses.

Finding and interviewing witnesses are specialties. Your lawyer should seek the assistance of a specialist in this area (i.e., a private investigator).

There Are Many Advantages of Retaining A Private Investigator

Using an investigator has several advantages over attorney-conducted investigation:

• It makes better and more cost-effective use of your lawyer’s time. Your lawyer can focus on researching the law, drafting pleadings, preparing witnesses and conducting hearings and arguments, while the investigator spends the many hours, at less cost.

• Factual investigation is a skill that improves with training and experience, something an investigator, who often might be a retired law enforcement officer, has and your lawyer may not.

• Investigators may have contacts with law enforcement agencies and access to government and online databases that your lawyer could develop only at great time and expense.

• Your lawyer may need to impeach the witness at trial with an out-of-court statement, and your lawyer cannot serve as both the impeaching witness and trial counsel.

Attorney Participation in Investigation

Even if your lawyer retains an investigator, the lawyer may want to accompany the investigator on certain interviews.

When defending most street crimes, the defense lawyer should get a feel for the scene of the crime. If appropriate, he should walk it, photograph it, and observe the lines of sight and whether views are obstructed.

The criminal defense lawyer also may want to participate in interviews of adverse witnesses. This will give the lawyer a feel for the witness’s confidence, hostility, eloquence, and ability to think on his or her feet.

Some witnesses grow hesitant and anxious in court, and others like the spotlight and become more certain and assertive. Also, the chatty witness who opened her home to the may turn hostile on the witness stand; the prosecutor may have reprimanded her for her effusiveness and painted the defense lawyer as a sneak who betrayed her hospitality and led her into damaging statements.

Being a lawyer in a bad neighborhood does not protect the lawyer from crime. On the contrary, it announces that the attorney may probably carry something worth stealing.

The Complexity in Choosing a Colorado Criminal Case Investigator

Most investigators are retired law enforcement officers. The Colorado criminal defense lawyer should try to match the type of investigation to the investigator’s background:

• For street crimes, use former narcotics and homicide detectives.

• For financial crimes, use former IRS agents and Postal Inspectors.

• For vehicular homicide and DUI cases, use someone with accident reconstruction training and experience.

Some investigators excel at finding elusive witnesses. Others write good, accurate reports and demonstrate unusually good judgment in deciding what to include and what to omit from a report.

Finding a good investigator can be difficult. Colorado criminal defense law firms – such as the Steinberg Colorado Criminal Defense Law Firm – have ongoing long term relationships. This firm uses Highlands Investigations www.highlandsinvestigations.com

What Are The Alternatives to Private Investigators?

If your lawyer chooses not to use an investigator, a witness must be present during the interviews to be available to testify to impeach the witness and to vouch that nothing improper happened at the interview.

The critical need is for a person who can pay attention and take good notes.

Steps to Conducting the Colorado Criminal Case Investigation

Resources and time always have limits, the scope of the investigation must be limited by necessity. A theory of the defense will guide the investigation. In most cases, your lawyer cannot refute every allegation. Your lawyer must revise the theory as more facts are discovered.

For example, an alibi witnesses may prove unworthy of belief, but the eyewitnesses may admit that their observations were fleeting and their identification of the defendant uncertain. In this situation your lawyer might choose to forego the alibi but to emphasize photographs, maps and videotapes of the scene to show the obstacles to a clear view. Your lawyer might also explore the retention of an expert on the weaknesses of eyewitness identification.

If the defense admits the act but claims consent or self-defense, the exploration of an alibi aside must be set aside for a while. However, defendants frequently mislead their own attorneys, sometimes in perplexing and self-destructive ways. This occurs most often when the material which is helpful for the defense is also embarrassing.

For example, many capital defendants had a childhood history of being abused, which could be powerful mitigating evidence at the sentencing phase, but many defendants will defend their parents and deny any abuse even at the cost of their own lives.

Measure the cost and time of the investigation against the possible benefit and the stakes. In a misdemeanor case your lawyer might forego exploring every possible lead to focus on a single persuasive defense strategy.

Basic Steps Your Lawyer Should Take to Investigate the Case

There are a few steps your lawyer should consider in every case:

• View the scene if appropriate.

• Interview all eyewitnesses.

• Obtain 911 tapes and all Audio and Video Evidence.

• Obtain the criminal histories of prosecution witnesses, especially cooperating witnesses.

• Investigate civil filings if applicable to the case.

• Interview or obtain written statements from your lawyer client’s family, close friends and associates.

With regard to the histories of the prosecution witnesses, the prosecution is required to disclose its witnesses’ criminal records.

However, most prosecutors will provide only the rap sheet. The rest of the court file may be rich with impeaching material: plea, hearing, trial and sentencing transcripts; victim impact statements; discovery; police reports; letters from the defendant; letters from the prosecutor.

Similarly, civil filings such as lawsuits, bankruptcy filings, and divorce actions all may contain evidence of deceit. In many jurisdictions, the courts do not permit filing of civil discovery, and your lawyer may have to contact the opposing party’s attorney to request a copy. He may be willing to share it without charge, especially if he believed that the witness was a fraud.

Interviews with the client’s family and friends can explain the story behind the offense, such as your lawyer client’s motives and the victim’s relationship to him.

Your lawyer will want to learn about the defendant’s background to explore any possible mental health defenses or mitigating facts for sentencing. Friends and family can also be a source of rumors and gossip about the other witnesses, and even though much of it may prove useless, some might lead to valuable evidence.

Other witnesses who else might have knowledge of the events, depending on their opinions on the approachability and credibility may make potential witnesses based upon what they have heard about the crime.

The defense must move quickly on that evidence which might disappear in time.

For example:

• Police departments typically destroy or record over 911 tapes in 30 to 60 days.

• In a vehicular homicide case, skid and yaw marks will wear and wash away.

• Some offenses occur in a locale such as a bar or street corner that is frequented by individuals who may or may not return.

What Are Some of the Criminal Case Interview Basics?

Choose a time and place during which the witness will be available and unburdened with other responsibilities:

• Transient witnesses with no job and no children should be approached at daybreak. Your lawyer probably will find them at home, and having just awakened, they will be vulnerable and unlikely to threaten the interviewer or to think quickly enough to prevaricate.

• Visit unemployed witnesses with children shortly after the children probably left for school.

Rarely should your lawyer show up unannounced at a person’s workplace. Law enforcement agents do this because the witness feels embarrassed in front of coworkers and customers and eager to cooperate to avoid another visit. However, a witness will not feel the same compulsion to cooperate with a private investigator. More likely, he/she will just be angry.Always identify the lawyer accurately.

The investigator should always leave a business card, both as proof that the defense did identify itself correctly despite the witness’s confusion (many people mistake “investigator with the Federal Public Defender” for “Federal Bureau of Investigation”) and so that the witness can contact the lawyer later.

Your lawyer’s or investigator’s first objective is to get the witness to start talking. Once witnesses start, they are unlikely to send the investigator away without telling their story, despite the advice of friends, lawyers and police officers.

With hostile witnesses, unannounced visits are a preferred technique. This is because most people find it easier to hang up on a telephone caller than to shut the door in a visitor’s face, and the delay between a telephone call scheduling an interview and the interview itself allows others to convince the witness not to speak with your lawyer. However, some witnesses, particularly neutral ones whose priority is to avoid inconvenience, might talk on the phone to avoid the inconvenience of a personal visit.

Interview Pitches and Techniques

Besides identifying the lawyer, the investigator should have ready a number of pitches to encourage the witness to talk. For example:

• “I’m only doing my job.”

• “We’re trying to find out all the facts so we can make a decision whether to work out a plea bargain or go to trial.”

• “We want to talk to you in person so we can decide if we can avoid subpoenaing you to trial.”

• “If you or a loved one were accused of a crime, wouldn’t you want your lawyer to talk to all the witnesses?”

• An investigator can find a bond with the witness in the nearly universal dislike of lawyers: “I’m sorry to have to ask you these questions, but the lawyer insisted. You know how pushy lawyers are. He told me to keep calling you until you talk to me or else he’d subpoena you.”

• The investigator’s tone always should be polite, respectful and non-confrontational. The investigator is not there to convince the witness he is wrong, although he or she might ask the witness to consider limitations on his story: for example, “It was dark, you couldn’t see all that happened, could you?”

• Be ready for the witness to ask if the accused is guilty or admits his guilt. Answer briefly and directly: “He has pleaded not guilty, and we are trying to determine if there is a valid defense to the charges. I am forbidden by law from telling you anything my client said to me or the lawyers.”

• Ask witnesses who else they think might have information about the events: who else witnessed the crime; who knows the other witnesses; what police officers, emergency medical technicians and firefighters responded.

• Always ask a witness how they know what they say if it is not obvious that the information is based on firsthand observations.

• If the witness knows the defendant or has any reason to have been in contact with him after the offense occurred, ask if the witness has spoken with the defendant about the case or anything else. Most discovery rules do not entitle you to pre-trial disclosure of the defendant’s statements to civilians. The defendant might have called the witness and confessed or threatened the witness.

• Ask the witness if the police or prosecutor interviewed him and if he testified in the grand jury.

Explore each interview in depth:

• Who attended each interview?

• What did the police ask and what did the witness say?

• Did they ask you anything that I have not?

• Did they say if they are going to talk to you again? Learning what the prosecution asked will offer insight into the direction of its investigation and theory of the case.

Rule for Interviewing Witnesses

Witness interviews pose some risk of accusations of ethical and even criminal misconduct:

Inducements.

Witnesses cannot be paid or offered anything of value. Lawyers sometimes allow sincere generosity to lead them into misconduct. Buying meals or paying for an apartment for a homeless witness is improper.

Most cases considering this issue involve civil, not criminal litigation, but those cases often look to the criminal statutes, such as the federal witness bribery statute, 18 U.S.C. §201(b)(3), (d)(generally prohibiting payment of witnesses, but permitting payment “by the party upon whose behalf a witness is called . . . , of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at any such trial, hearing, or proceeding”), in reaching their decisions, and the relevant ethical rules, e.g.,

Threats To Witnesses

Your lawyer cannot threaten a witness with physical harm, ostracism or economic loss, with one exception. Employers are entitled to their employees’ cooperation in investigating a job-related accusation, and if your lawyer represents the employer, he-she can explain that a refusal to be interviewed and to cooperate fully with the investigation may lead to job termination.

The Issues Regarding Making Recordings

Federal law permits a party to a conversation to record it without the interlocutor’s consent (meaning that federal agents can record with one party’s consent anywhere in the nation). While states vary in whether they permit recordings with only one party’s consent..and surreptitious recordings in violation of state law carry criminal penalties…. Colorado permits individuals that are a party to the conversation to record the conversation. Ethical constraints prevent lawyers from taking advantage of this law. They are held to a higher standard. I recommend obtaining the clear consent of ANY witness before a recording is made.

Lying to Witnesses.

Neither your lawyer nor your lawyer investigator can lie to or deceive witnesses.

The Witness Who Incriminates Himself and Requests for Counsel.

There is no obligation to warn a witness that his statements may incriminate him or to advise him to obtain counsel. However, if the witness appears confused about whom your lawyer represents or your lawyer’s role, your lawyer must clarify both.

Interviewing A Defendant’s Employees – Warnings

Except where a witness clearly exhibits the mistaken belief that the defendant’s lawyer represents him, there is no obligation to inform the witness that his statements can be used against him or of the use to which your lawyer client might put the statements.

Special considerations arise, however, when the lawyer represents an entity such as a corporation and your lawyer interview its agents or employees. The corporation holds the attorney-client privilege, but since the entity can speak only through its employees, the employees’ statements to your lawyer as the corporation’s attorney are privileged and not discoverable, unless the corporation chooses to waive the privilege.

As the client holds the privilege, not the employee, and the corporation can waive the privilege and reveal the communications without the employee’s consent – often to the employee’s detriment. Corporations frequently respond to criminal investigations and threats of prosecution by conducting an internal investigation, which in large part consists of interviewing employees, and then offering up the culpable employees for prosecutionin order to purchase non-prosecution or leniency for the corporate entity. The interviewed employee may believe, however, that he and his corporate employer share a common interest – defeating any prosecution – and that therefore the attorney hired to defend the corporation also represents him.

Several dire consequences may follow from the employee’s belief, if it is found to be correct: (1) The employee can claim the privilege and prevent the lawyer or the lawyer’s corporate client from disclosing his statements; (2) he can claim that the lawyer operated under conflicting demands of loyalty from two adverse clients – the employee who wants to assert the privilege and the corporation which wants to use the employee’s statements to buy its own non-prosecution – and have the lawyer disqualified from representing either client; (3) the conflict might subject the lawyer to disciplinary action and malpractice suits.

Still, the lawyer must take two precautions at minimum:

(1) Inform the witness that the lawyer represents the corporation and not the witness;

and

(2) Not mislead the witness into thinking that the lawyer represents him.

Interference With Investigation – Prosecution Interference

Witnesses are free to refuse to talk to the lawyer.

However, the prosecution cannot discourage witnesses from speaking to the defense.

ABA Standards Relating to the Prosecution Function, §3–3.1(d) (stating that a prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel, and that a prosecutor should not advise a person to decline to give information to the defense investigator).]

If the lawyer finds evidence of interference, the Court should enter an order that the witnesses be instructed that they are free to speak with the defense. The Court should be requested to enter written directions to be delivered to the witnesses.

The Criminal Defense Lawyer does not want the police to deliver oral instructions, tainted with the officer’s inflections, tone and gestures.

Some courts also have ordered that the witnesses be produced for discovery depositions where the prosecution interfered with the defense’s ability to interview them.

Witnesses Represented by Counsel

If a witness is represented by counsel with respect to the case, the lawyer should obtain his permission before speaking to the witness. Most lawyers will not allow the defense lawyer to speak to their clients regarding their trial testimony, but many will summarize it for the defense lawyer and may even promise answers to particular questions your lawyer might pose.

Witnesses, represented and not, may ask the defense lawyer for advice. The criminal defense lawyer will explain that since the witness is nor represented by the criminal defense lawyer, the lawyer cannot give advice. [See Model Rule 4.3 (“[d]uring the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel”).]

The Defense Witnesses

The boundaries on what your lawyer may tell their witnesses about speaking with the police and prosecutor are similar to those for the prosecutor.

Your lawyer can explain the law, such as:

• The parties’ attorneys have a duty to try to interview witnesses, but the witness is free to refuse to speak to the prosecution.

• A subpoena can order a witness to appear only at trial or a hearing.

• If the witness chooses to talk, then he or she must tell the truth.

However, your lawyer cannot instruct the witness to refuse to speak to the police. And, aside from explaining the few legal principles listed above, your lawyer cannot offer legal advice.

If the witness persists with questions about the law, your lawyer should:

• Explain the legal impediment to answering these questions.

• Apologize for the lawyers inability to answer.

• Suggest that the witness retain his own lawyer.

Your lawyer can explain the interview and trial process to the defense witnesses and the reasons that the police want an interview. Often, the manner in which the process is described will predict whether the witness speaks to the police.

The defense lawyer can reveal that the police will take notes and write a report about what the witness says in order to cross-examine him or her if the story at trial differs in any detail.  [But see Colorado Bar Ass’n, Ethics Opinion 65 (March 17, 1984) (“It is deemed unethical conduct for an attorney or his representative to advise or to imply to a potential witness that he should not submit to a pre-trial interview by opposing counsel or his representative.”) (emphasis added).]

It is unethical conduct for an attorney or his representative to advise or to imply to a potential witness that he should not submit to a pre-trial interview by opposing counsel or his agent.

 

In any communication to potential witnesses concerning their duties and privileges, both prosecutors and defense counsel are required routinely to advise that: (1) It is proper and may be the duty of both parties to attempt to interview all persons who may be witnesses and that it is in the interest of justice that such persons, subject to their voluntary and informed consent, be available for pre-trial interviews, and (2) There is no obligation for the witness to submit to a pre-trial interview by the prosecution or defense and the decision to submit to such an interview belongs to the witness.

 

Recorded Interviews Are Permitted If They Are Consensual

Generally, do not audio or videotape any intervie without permission.

The Investigator’s Notes

Attorneys’ notes are rarely discoverable because of the work product privilege.

This privilege extends to investigators who are part of the defense team, but the privilege correctly receives less deference for investigators because their notes are less likely to reflect the attorney’s thinking.

Therefore, when dealing with defense witnesses, your lawyer may want the investigator to report orally to your lawyer. Your lawyer may then memorialize the important points in your lawyer own notes or memoranda.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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