When Dean was a kid, there was a business near called U Auto Fix It – and it had all the tools and equipment needed for a person to work on their own vehicle. They also had mechanics on hand for customers not interested in DIY. It wasn’t long before Dean’s Dad handed their 1947 Willys Jeep to a mechanic – it was taking more time and money than expected, and ended up costing more for the mechanic to fix the mistakes.
Do It Yourself is too common of a mistake, like the Jeep, with the best of intentions. A person’s future is not a Jeep, fixing a leaky faucet or even arguing a traffic ticket. It is often said there are no guarantees in life. There is this one – mistakes in criminal defense will cost only the defendant, all others walk away unscathed.
Like you, we are contacted frequently by those with the best of intentions, which usually accompanied by insufficient financial resources. What should you tell them and why? We have accepted pro se cases, and offered pro bone assistance – both under careful consideration of the case and circumstances. With the exception of family questioned death reviews, which are not considered for litigation we predominantly work only with attorneys and their investigators. What are some of the issues? Here are some, and we go into more detail in the commentary. The life, liberty and future of a criminal defendant is the heart of the issue – and is not the circumstances to take chances with.
- Doing it yourself: Are you qualified and experienced? Are you prepared to be your own witness?
- Saving money having a relative or friend do it: Are they qualified and experienced? Are they prepared to be your witness?
- Proper investigation: Does the person know the legal issues, elements of the charges, implications of the charges, confidentiality issues – including any disclosures, evidentiary issues?
- Common mistakes: Not communicating with the defense attorney; unprotected / non-confidential communication with the defendant. Disclosing findings to the prosecutor or law enforcement hoping to drop the charges. Making things worse – such as exposure to incriminating information and additional charges.
Doing It Yourself: Are you qualified and experienced? Are you prepared to be your own witness?
These are two basic questions. With the best of intentions, a defendant may seek the aid of someone they trust – or someone may volunteer to help. There is going to be bias – it cannot be avoided, it is why they are trusted. Being qualified is not specific to licensing – which, if required, can have all the work and evidence inadmissible. Being qualified is about knowing what criminal defense investigation is about – and there are several factors. First is what are the elements of the criminal charges, and how are they applicable to the investigation? Key words such as ‘intent’ or ‘knowingly’ seem insignificant to the unqualified and inexperienced. What is the legal strategy by the defense attorney? There are a limited number of defenses to strategize. One is an alternate suspect, another is the events did not happen as charged (which is different from did not happen at all). All of the investigative findings in the world which do not address the defense strategy is wasted. This is why experience is so important. A good professional investigator is always learning – from mistakes and simply their work, and learning from others, to attending specific training. Experience is also knowing the applicable law and rules of evidence as needed by the criminal defense investigator.
Is the trusted, and amateur, investigator ready to testify? Do they know what is to be expected? Have they ever testified? These are basic – and for some professional investigators, not answered – except all are ready to testify as needed. As will be pointed out here, there is no confidentiality to an investigator not acting as an agent for the attorney. In fact, there may be significant harm to have this person related or having a biased interest testify, especially under skilled cross examination by the prosecution.
Are they qualified and experienced? Are they prepared to be your witness?
This is something not often considered with DIY investigations. Testifying may happen at a deposition, a pre-trial hearing (bond, probably cause, and motions hearings) – and the prosecution or adverse party will be looking to impeach the information and credibility of the DIY investigator (which will be easy to do for the inexperienced). Testifying is an experience best observed to understand. Even for the experienced it can be uncomfortable and for those close to the defendant – also emotional. It is likely the DIY investigator is not qualified or experienced, and will be questioned to this. This will show when opinions are offered as answers, which will be objected to – only an court recognized expert can provide an opinion; all other witnesses – including any investigator – is a ‘fact witness’ and they can only testify to facts in evidence or having developed foundation through the testimony continuum to be admitted as evidence. This may also include their reports and any evidence they developed (i.e. scene photographs, interview recordings, etc.). This is a rabbit hole the DIY investigator will not be prepared for.
Does the person know the legal issues, elements of the charges, implications of the charges, confidentiality issues – including any disclosures, evidentiary issues?
These are complex areas experienced Criminal Defense Investigators learn through their relationships with attorneys, training, continuing education, from other colleagues, and experience. The most common mistakes made by DIY investigators (and inexperienced independent investigators) are breaching confidentiality, created reports and evidence (photographs and recordings) which are not protected by attorney-client and work-product doctrines and may be subpoenaed by the prosecution, trying to present their ‘evidence’ to the prosecution and/or law enforcement hoping to get charges dropped, and several other factors. It cannot be stressed enough – there are no protections between a DIY investigator and the defendant, or the DIY investigator and the attorney. Everything the DIY investigator does is vulnerable – exposed – to the prosecution and may be used against the defendant.
As an example – the DIY investigator sees on social media of the reporting victim they had planned an event to entrap the defendant, or they knowing made a false report of a crime by the defendant resulting in the charges. The DIY investigator goes to law enforcement and/or the prosecution with this information. Sounds good – case closed. Far from reality. This denies the attorney important information, the information is unprotected, and is now exposed to the prosecution – who is trying to convict the defendant with any information they have which may be used against them. This is very similar to the defendant waiving their Miranda rights with the hope the truth will set them free.
Similar to this are communications with the defendant, which are not confidential, and are exposed to the prosecution. If the defendant is incarcerated and writing or using a phone with the DIY investigator – their communication is being monitored, and may be used against both the DIY investigator and defendant. Too often jailhouse calls reveal conversations later used against the defendant; and, if the DIY investigator is to become a witness – against them.
Evidence is developed from discovery given by the prosecution to the defense, and through investigation. These are two very different tasks. For discovery, there are Constitutional rights of the defendant to receive these and the prosecution will share directly with the attorney, who will share with their Criminal Defense Investigator – neither will (or can) share with the DIY investigator. The DIY investigator will begin making public records requests – which will not include everything in discovery. They will then attempt to dissect the discovery, reach conclusions, and conduct additional investigation. These are where violations of confidentiality begin and the DIY investigator reveals to law enforcement and/or prosecution, and the defendant in monitored communications, everything they should not.
Common mistakes: Not communicating with the defense attorney; unprotected / non-confidential communication with the defendant. Disclosing findings to the prosecutor or law enforcement hoping to drop the charges. Making things worse – such as exposure to incriminating information and additional charges.
Of the issues described in this blog, this section may be the one that could cause the most damage and harm to the defendant’s case. Although all aspects we have presented are concerning, the disclosure of any defendant statements, defense evidence, and defense strategy can have consequences in which the defendant will be subject to.
Most often with no intent or malice – and actually with the best of intentions – a DIY investigator will divulge otherwise confidential information with the hopes of helping the defendant. Because there is no confidentiality between the DIY investigator, the defendant, and the defense attorney, they may also become a witness against the defendant. Most important – before this might happen – the DIY investigator has disclosed information unintentionally through recorded jailhouse calls, social media posts, and intentionally through direct communication with law enforcement and the prosecutor. As an example, the DIY investigator speaks to the defendant through a family jailhouse call – which is recorded – and conversations happen. The defense attorney and Criminal Defense Investigator are required to be given confidential means of communication by phone, mail, and in-person. From these DIY investigator disclosed communications may come amended charges, new charges – often more serious – and even prosecutorial decisions to not offer reduced charges or other plea negotiations. As a further example, in such a conversation the defendant admits to sexually taking advantage of another after the reporting victim is intoxicated (this is sexual assault / rape). The defendant further states they did not put any drugs in any drinks. These statements include an admission to elements of the sexual assault. There is other discussion, including they had a relationship a few years prior for a few months and were rekindling it. The DIY investigator goes to the prosecution with this to show there was no use of drugs or intent to rape, and there was implied consent due to a previous relationship being rekindled. These are not legal defenses or strategies – and are admissions to a level of sexual assault defined by applicable statute.
The next concern are the consequences caused by these actions. From amended and additional charges, to harsher sentencing. Any information presented to law enforcement goes to the prosecutor, and any information from the prosecutor can and will be used in their positions to offer, or not, plea agreements, hearings, trial, and sentencing. The only person who pays these consequences is the defendant. The best a DIY investigator can do is to completely avoid any involvement and communication of the charges, events, evidence, and other circumstances of the defendant – including any other criminal activities and history they may have. We have even seen family and friends find themselves charged as accessories or co-conspirators to crimes while in the process of trying to help the defendant.
Another Common Mistake – Retaining Your Own Professional Investigator
Another related issue is a Criminal Defense Investigator accepting a defendant, or the defendant’s representative (usually a spouse or parents) as a client – and not through the defendant’s attorney. There are several issues with this – this includes Rules of Professional Conduct the attorney must abide by, Rules of Evidence for all, as well as any work-product and attorney-client confidentiality protections. Under a licensing program, there may ethics and also the work-product and confidentiality protections; there may not be – and there isn’t if there is not a licensing or other consumer protection program, laws or regulations in place.
As an example, a defendant and/or representative is not happy with the attorney, specifically strategy. In addition to the conduct errors above, there is also the apparent collapse of communication between attorney and client, and there is no relationship between the attorney and independent investigator – and no confidentiality. This leaves both the attorney and independent investigator in a vacuum of information vs. lack of information, possibly conflicting information, and both procedural and ethical quandaries. There is also the question of any evidence the independent investigator may develop, and how will it be introduced. With this – what if the independent investigator testifying and no confidentiality or communication with the attorney.
As much as an investigator may wish to help a defendant and their representative – it poses significant issues to the defendant, which is the only focus and purpose of the attorney and any Criminal Defense Investigator. We are often contacted in these circumstances, and our best practices is to work only through the attorney – being retained, paid, and directed for tasks and strategy. Any concerns the defendant and/or their representative may have should be through the attorney.
In full disclosure, we have conducted investigations for persons close to us in both civil and criminal. These were done following all practices and standards through their attorney exactly as any other retained case would. Do we recommend doing so? Only if you can assure not being emotionally attached, and keeping only your professionalism. Even here, these should be limited and still only by professional investigators.
Advice – the defendant must follow the advice of their attorney and investigator, and their Constitutional rights. This includes the right to remain silent… to all people, not just law enforcement. A lose tongue is not a good thing.
Remember – mistakes in criminal defense will cost only the defendant, all others walk away unscathed.
PS – Criminal defense is not the only mistake of DIY. Doing your own background, individual locates, assets & liabilities, public records searches, etc. are just a few examples of where laws and regulations dictate what can be searched, reported, and used in decision making processes. Our agency does not do surveillance, deep social media investigations, financial investigations, etc. – we go to other professional investigators.