Your criminal defense lawyer has a duty and an obligation to their clients to conduct an independent investigation of the facts for each and every client.
It is never okay to simply rely on the incident reports and statements from law enforcement about what happened – cops lie, prosecutors exaggerate, and, even when the evidence seems overwhelming, independent examinations of the evidence by defense experts, independent interviews of witnesses, and other investigations by your attorney may turn up unexpected defenses or impeachment material for the state’s witnesses.
So, what do we mean by an independent investigation, how can it help your case, and why do some defense lawyers think it’s optional?
What is an Independent Investigation?
Our job is not to “make sure your constitutional rights are protected” or to “give you your day in court.” We are not “brokers” who mediate between our clients and the state to find the best plea agreement.
Our job, unless we discuss other potential goals in your case, is to win your case, using all legal and ethical means available to us. Winning could mean a dismissal, an acquittal at trial, or a good outcome that you can agree to.
The prosecutor has the power and resources of the government at their disposal to ensure they get a conviction. The reason you hire a criminal defense attorney is to level the playing field to the extent possible, which means your attorney must also investigate the allegations and do everything possible to gather the information that would allow us to:
- Get your case dismissed,
- Persuade the prosecutor to offer you pretrial diversion or reduced charges,
- File pretrial motions to exclude key evidence in your case,
- Call witnesses who will testify in your favor,
- Subpoena documents that will help your defense,
- Discredit and impeach the state’s witnesses,
- Corroborate your witnesses and testimony, or
- Win your case at trial.
How Do You Conduct an Independent Investigation?
Regardless of the evidence against you, your attorney’s job is to 1) find favorable evidence and 2) discredit damning evidence.
It doesn’t matter if you are innocent or guilty. It doesn’t matter if you tell your attorney “I’m guilty.” Your attorney’s job is the same in either case…
What is required in an independent investigation will depend on the facts of each case, and it is an ongoing process as we receive additional information from our clients or the state. Some examples of things that your attorney can and possibly should be doing include:
- Get and review all charging documents – arrest warrants and indictments, for example, to determine 1) the elements that must be proven for each charge, 2) the defenses that may be available, and whether there are any defects in the charging documents that could result in a dismissal or reduction of the charges,
- Interview the client – immediately and periodically throughout the case and trial preparation,
- Gather mitigation materials from the client, family, friends, church members, teachers, employers, and all available sources,
- Interview potential witnesses – including defense witnesses and state’s witnesses (using an investigator or with a witness in the room, so the attorney does not risk making themselves a witness if they need to impeach the witness later),
- Visit the scene of the alleged crime – as soon as possible, under circumstances like those on the day of the incident (weather, lighting, time of day), and conduct re-enactments as appropriate,
- Retain experts when necessary for consultation, for testimony at trial, and to review the state’s experts’ work product,
- Retain investigators as needed to locate and interview witnesses, to conduct surveillance, or for specialized investigations like computer forensics,
- Use subpoenas – seek information, documents, and witness testimony through subpoenas,
- Use FOIA requests – seek information and documents through Freedom of Information Act (FOIA) requests,
- Talk to the arresting officer or lead detective – before they have prepared their testimony for trial,
- File discovery motions referencing both Rule 5 and Brady,
- File supplemental discovery motions asking for specific evidence or information that was not provided in response to your initial discovery motions,
- File motions to compel discovery and request a hearing to ask the court to 1) force the prosecutor to turn over the materials you requested in your discovery motion or 2) have the prosecutor state on the record why they are not turning over the requested materials, and
- Request preliminary hearings where the attorney will have the opportunity to cross-examine the arresting officer or lead detective under oath – before they have been prepped by the prosecutor for their trial testimony.
An Independent Defense Investigation is Criminal Defense 101 – It’s Not Optional
It seems like most attorneys who represent criminal defendants would understand that this is the job, but many do not.
Let’s take a Nebraska criminal defense lawyer’s blog post on the subject for an example – he seems to think it is a “myth or misperception” that criminal defense lawyers should actually investigate your case. I’ll reply to some of the statements I found on his website.
This attorney says:
First and foremost, a criminal defense attorney’s job is to protect your rights throughout the prosecution of your case.
It is part of our job to protect our client’s rights. That’s also a part of the prosecutor’s and the judge’s job, so what distinguishes a defense lawyer from anyone else in the process? Our job is to, within the bounds of the law and the ethics rules, get our client’s case dismissed or win it at trial.
Your attorney does not need to prove that you are innocent – in fact, your guilt or innocence is often irrelevant to a criminal defense attorney.
Although the burden of proof is indeed on the state to prove that you are guilty beyond any reasonable doubt, you had better prove your client’s innocence to the jury, if possible, because that “burden of proof” legalese is lost on most ordinary people.
A job of a defense attorney, therefore, is to make sure you are not convicted unless the State has met its burden.
If I am charged with a crime, guilty or not, I hope my defense lawyer does not think their job is to make sure the state meets its burden of proof before I am convicted. Your job is to make sure I am not convicted. I didn’t hire you to just keep an eye on the State to make sure they meet their burden of proof before sending me to prison…
Whether or not your criminal defense attorney decides to conduct an independent investigation in your case will be decided on a case-by-case basis based on the facts and circumstances of the case; however, it is certainly possible that an investigation will be conducted.
The attorney then explains the situations where your attorney “might decide to investigate your case.” For example, to find out “how well your version of events will hold up at trial,” or when “it appears that the police did something wrong during your investigation.”
Apparently, this attorney will only conduct an independent investigation for his clients when you give him a reason to…
You Don’t Know What You Don’t Know
The problem is, you don’t know what you are going to find until you look. Your attorney should never assume that the information found in an incident report is true, that the police are not lying under oath, or that the state’s witnesses do not have a reason to lie. Uncovering these things is your attorney’s job in every case.
Your attorney should always assume the information in the incident report is wrong, the witnesses have a motive to lie, and the police are not handling the case professionally. At least until the attorney has investigated and is satisfied that these are not issues in your case. Why? Because these things are often true.
it is never a matter of when your attorney might investigate the allegations against you. That is always your attorney’s job.
How do you know if your attorney is going to take your money, rely on the state’s evidence, and then talk you into a guilty plea?
But these are questions you should probably ask when you first meet with potential attorneys – no attorney should be offended when a potential client asks, “what will you do to investigate the charges against me?” And, if they don’t have a satisfactory answer, you may want to look for another attorney.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.