How To Find and Work with a Private Investigator in a Criminal Defense Case
What does a criminal defense investigator do?
A private investigator working on behalf of a criminal defense attorney is working primarily as a finder of fact. In criminal defense cases, the investigator is usually tasked with developing exculpatory evidence of some kind – in other words, evidence which can be used to contest the criminal charges faced by the defendant. The specific exculpatory evidence will be different in almost every case.
For example, let’s take the hypothetical case of Ray. Ray was given $5,000 in cash by Jim. Jim claims that Ray was supposed to take the cash and give it to the contractor who was fixing his roof. In fact, Ray uses the cash to buy a used car for himself. Jim calls the police and files a police report, and Ray is arrested on the charge of larceny, a felony under California Penal Code section 484(b) that carries a maximum penalty of a $10,000 fine, up to one year in prison, or both. In this hypothetical scenario, Ray claims Jim knew that the cash was going to be used by Ray to buy a car. Ray claims that both Ray and Jim, joined by a mutual acquaintance Bob, discussed the transaction several days before the cash changed hands. Bob, unfortunately, was not available to talk to the police at the time the arrest was made, has since left the state, and has not been located.
Ray’s defense attorney calls a private investigator to assist. The investigator uses any information Ray is able to provide about Bob – his full name, approximate age, and his former California phone number – and conducts a locate investigation, using the basic information to develop and confirm his current whereabouts. These findings are shared with Ray’s lawyer, who discusses them with Ray.
Ray’s defense counsel then instructs the private investigator to contact Bob and obtain a recorded statement, under oath, detailing his recollections of the discussion between himself, Ray and Jim about the cash. In this case, the investigator is both a licensed private investigator and a registered public notary, and with these two credentials is able to take Bob’s sworn statement that he indeed recalls Ray and Jim discussing and reaching agreement that the cash would be for the purchase of the car and not for the roof repair as Ray alleged in his statement to police.
Such a statement may be used directly by defense counsel as prima facie evidence of the invalidity of the criminal charge – for example, to support a motion for dismissal. In other instances, defense counsel may wish to subpoena Bob to appear in court for deposition or testimony at trial, during which time his prior statement to the investigator could be introduced as evidence. The investigator may also be called to testify as to the circumstances under which the statement was taken and to support its being introduced as evidence.
In other cases, the exculpatory evidence identified by a private investigator may be very different. In a case where fraud is alleged, an investigator may be retained to conduct forensic analysis of electronic or physical records to identify facts and inconsistencies which the defense attorney could then use to support their case. Or, in a motor vehicle case, an investigator may be engaged to help reconstruct the conditions of the incident, including video surveillance of an intersection or other premises at a certain time of day or capturing evidence of sight lines, normal traffic flow and volume, and other factors which may have contributed to an accident, and may find that the facts presented in the case against the defendant are impossible or implausible for any number of reasons.
The most important thing is to make sure you work with a criminal defense investigator who understands how to develop factual evidence that will both be admissible in a court of law but also is directly relevant to the points of law in the case. Criminal statutes detail specific elements of the crime which must be proven in order to obtain a conviction. An expert criminal defense investigator will understand those elements and frame their investigation to develop evidence that speaks directly to the elements of the crime.
How should you choose a criminal defense investigator?
First, be sure the investigator is licensed. In California, as in many other states and local jurisdictions, private investigators must be licensed and should display their license number on their website, reports, business cards, advertising and similar materials. If you encounter an unlicensed investigator, you should file a report with the appropriate licensing agency (in California, private investigators are regulated by the California Department of Consumer Affairs Bureau of Security and Investigative Services, who maintain a website where any individual can validate the license status of private investigators, private security companies, locksmiths and similar security-related professions. See this page).
It is also important to become comfortable with the investigator’s experience and expertise conducting the type of investigation you need. Criminal defense investigation requires a particular skill set and aptitude, and not all investigators will be qualified or competent to perform criminal defense investigations well.
Any reputable investigator will be willing to freely discuss their experience with a particular area of investigation, and should provide a free initial discussion or consultation based on the specifics of your case. Most trustworthy investigators will also provide references if requested.
What qualifications should you look for in a criminal defense investigator?
Beyond the licensing requirements discussed above, a good criminal defense investigator will have a solid understanding of the law. Some may even have gone to law school, or worked as a member of an in-house investigation team, such as are used by the district attorney’s offices or many insurance carriers (who refer to these in-house investigators as SIUs, or Special Investigation Units). Some investigators may be retired law enforcement, retired military and/or retired intelligence personnel. While these qualifications each add a particular benefit to an investigator (for example, a retired Sheriff will most likely have a few good contacts with the local Sheriff’s department), it’s important to look beyond the badge. Make sure the investigator has the right attitude and mindset. Psychometric training and experience is an extremely valuable skill for a private investigator, as this provides an extremely useful toolset to “read people” and get subjects to state what they otherwise might not divulge.
What should you expect when working with a criminal defense investigator?
Any reputable private investigator – whether working as a criminal defense investigator or in another area of practice – should provide you with a full estimate, up front, of the expected costs of the investigation; should provide you with regular updates, according to criteria you and the investigator discuss and agree to at the start of the investigation, so you are aware how the investigation is progressing and how far you have moved toward the investigation’s estimated total cost; and, at the conclusion of the investigation, the investigator should provide you with copies of all information obtained on your behalf accompanied by a written report. In some cases, it may be advantageous to waive the written report – for example, in a criminal defense investigation where an investigator has uncovered information that supports the prosecution’s case, an attorney may opt for a verbal report to avoid the creation of a document which later may be subject to discovery by opposing counsel.
On the topic of confidentiality, it is worth underscoring that in California, licensed private investigators operate under the terms and protections of the California Business and Professions Code, which gives private investigators a substantial degree of power to avoid disclosure of information generated during an investigation. While private investigators are required by statute to divulge their findings to their client, they are empowered to not disclose information if their client has not authorized such disclosure. This is a strong protection under state statute which means a private investigator cannot be compelled to disclose confidential information even under subpoena – unless directed to disclose by their client. This is a level of protection which, because it is derived from statute, may even exceed the strength of attorney-client privilege.