“ The Defense Investigators Dilemma”

William A. Monroe, CCDI, CFSI, CFI-FTER
Faculty Advisory Board Distinguished Member CDITC

I commonly field and respond to questions (Most often from Attorneys) like “Explain what you do as a defense investigator that my paralegal or legal assistant cannot do”? Unfortunately, this is a seldom discussed elephant in the room amongst professionals in my field. Speaking frankly and honestly, this discussion amongst attorney clients, and other investigators, can sometimes become more of an adversarial debate that often detracts from the purpose and goal of the discussion, and is a constant challenge in investigative defense work.

How many times have you as a criminal attorney hired a private investigator who has charged you an exorbitant retainer fee that you have to chase for information continually? Or, the investigator that fails to be honest with you from the onset and discuss upfront what their areas of expertise are? How about the investigator (which is most common) that you feel the need to micro-manage because you have been burned in the past by investigators who lack the skill required to conduct a competent defense investigation?

Another challenging situation for the defense investigator in private practice is an attorney waiting until the last minute to hire a competent, qualified professional investigator to conduct a defense investigation. In many situations, we, as investigators, contribute to those problems, opinions, and assumptions ourselves. Just as the client has the right to a skilled attorney, who is trained, educated, and experienced in defense, so too, they are entitled to a qualified criminal defense investigator explicitly trained in the art and science of defense investigation.

I speak to attorneys and investigators both in private practice and those who work in the area of indigent defense for state and federal public defenders offices across the country regularly. In most cases, the honest ones will tell you; they instead prefer to investigate themselves (meaning their paralegals or office staff) and bill for investigation and take their chances.

When confronted by these situations, my answer is always straightforward:

Your paralegal or legal assistant cannot do what I do, nor do they have the training, education, experience, and expertise that I possess as a defense investigator. Most importantly, you cannot put yourself or your paralegal on the stand to provide expert testimony on defense investigative methodology, process, or philosophy.

Criminal investigation and defense investigation are two very different things with very different goals, methodology, and philosophy. I am required to be licensed in California to do what I do as a defense investigator. The fact that I maintain a private investigator’s license does not solely qualify me to conduct defense investigations properly, which is a common misconception amongst attorneys and private investigators in the business. The fact that a private investigator has spent 20 years in law enforcement as a homicide investigator does not necessarily qualify them to conduct defense investigations. The same applies to a paralegal or legal assistant for that matter.

Can an attorney that has spent his or her career focused on family law, for example, handle a criminal defense case. Sure, I would imagine they could. However, Is that the attorney you want to entrust your money, freedom, and the rest of your life to when accused of a crime? The same questions should apply to the investigator you hire to investigate your cases. There are many great private investigators out there, and some do fantastic work for their clients. However, only a small percentage of investigators are qualified to be called “Defense Investigators.”

As to the investigator, every private investigator is not a defense investigator, no matter what they call themselves, as difficult as that may be for some to swallow. The specialty field of defense investigation encompasses the entire investigative area of study. No one is an expert in every discipline there is. No matter what an investigator may tell you or advertise. It is impossible and is, in large part, the reason private attorneys cite that discourages them from the required use of an investigator in criminal cases. The statement “You get what you pay for “is often used by investigators trying to justify inadequacy in their work (or lack thereof).

I preface my next comments as I do with every case from the onset and state that I am not an attorney, nor do I profess to be. I cannot and do not provide legal advice. Attorneys litigate I investigate. I am a criminologist, an expert in criminal defense investigation, and the preparation and presentation of accurate facts. I am expertly trained in the component method of defense investigation. I am a private practitioner and a licensed California professional investigator and assist counsel in the preparation of civil and criminal cases for litigation through investigation.

I have an undergraduate degree in Police Science, a bachelor’s degree in Social and Criminal Justice, A graduate degree in Criminal Justice with a field-specific concentration in forensics. I am currently a first-year doctoral student pursuing my doctorate in psychology in criminology with a specific focus in justice studies. I have 21 years of law enforcement and security experience performing a multitude of duties and responsibilities in those fields.

I have provided expert opinion in both state and federal court proceedings regarding police procedure and use of force, as well as K-9 search and seizure. I am a Board Certified Criminal Defense Investigator (CCDI), A Board Certified Forensic Science Investigator (CFSI), and a Board Certified Forensic Interviewer trained in Forensic Testimonial Evidence Recovery (CFI-FTER). I serve on the Faculty and Advisory Board as a distinguished member and teach yearly at the National Defense Investigators Academy for the Criminal Defense Investigation Training Council (CDITC).

The first obstacle that I had to overcome once I decided to focus specifically on defense investigation was to forget everything I learned as a cop over 21 years. I am not purporting that I do not draw upon that knowledge and experience, but first and foremost, I’m a defense investigator. It is the only thing that I do.

As a defense investigator, I understand that every criminal case does not require a complete, extensive investigation. However, every situation demands a Forensic Investigative Case Review And Analysis (FICRA), provided by a competent defense investigator who is trained specifically in defense investigation. If you do not know what that is, ask your investigator if they do. You may be surprised by the response.

A Forensic Investigative Case Review and Analysis (FICRA), is a comprehensive forensic examination of the prosecution’s evidence that can reveal flaws, inconsistencies, errors, and omissions in a case. It consists of a line-by-line, page-by-page, forensic examination of all the discovery provided to the defense by the prosecution. It should be the very first thing that your investigator does in every one of your cases. A FICRA, adequately conducted from the onset of a case, provides you the factual information you need to determine a defense strategy. Further, It should not cost you half of your retainer to have completed.

You should expect and receive, (in most cases within 24-72 hours), dependent upon the volume of discovery and complexity of the case, a detailed attorney work product from your investigator. It should provide you with a documented analysis identifying inconsistencies, discrepancies, errors, omissions, and leads to be pursued during the process of investigation. If you are not getting that from them every time, you should be asking your investigator why.

Finally, your relationship with an investigator should be like all of the other relationships you have in your profession. You should be able to communicate, trust, respect, and expect honest, lawful, ethical, productive, professional behavior and effort in every case to prevent these dilemmas both for attorneys and the investigators that they use.