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INVESTIGATION IN LITIGATION (OR HOW INVESTIGATORS CAN HELP ATTORNEYS WIN CASES)

By David C. Childe, CFA

Note: This article appeared in The Memphis Lawyer and was adapted from a presentation made at the Litigation Section's annual CLE event


Regular deployment of an investigator and a close attorney/investigator relationship can provide a critical edge in litigation - at every step of the way. Yet attorneys do not always utilize their trusted investigators as fully as they could. I have listed below a sampling of how a well-rounded investigator can add value to cases. And it is axiomatic that having one person perform all these jobs is highly synergistic. I will cover the items in bold in this piece.

 

  • Pre-litigation investigation – facts

  • Pre-litigation investigation – assets

  • Service of the complaint and summons

  • Assistance with the development of the trial notebook

  • Finding new witnesses

  • Interviewing all key witnesses

  • Service of the witnesses, particularly the difficult locates

  • Development of background and impeachment material pre-deposition

  • Performance of forensic accounting to gather proof

  • Conducting surveillance

  • Analysis of the deposition transcript for inconsistencies

  • Backgrounding of the jury pool

  • Polling the jury post-trial

  • Forensic accounting if judgment is won

 

***

 

Although attorneys and paralegals are generally more-than-capable of doing their own investigative work – and states recognize this by exempting them from licensing requirements - it is oftentimes more efficient and tactically sounder to let a competent investigator to do it:

 

Professional interviewers. The lion's share of investigative work involves interviewing. Good interviewing skills involve putting people at ease and the ability to get people to open up and the ability to detect deception. Attorneys usually shine in this department, but not always. A good investigator invariably does. And, even if attorneys are skilled interviewers, people often clam up in their presence or tell them what they want to hear.

 

Out in the field. Willingness to venture out in the field on the on the interviewee's turf is often essential to getting the interview and critical to sustaining communication. People are generally not comfortable in attorneys' offices. Evaluating witnesses in their own milieus affords key insights into their lifestyle, habits, and character.

 

Some attorneys and paralegals are willing to become acquainted with field work. I applaud them for this proactive stance yet discourage it on safety grounds alone, unless they have training in defusing tense situations in urban areas. I don't know why this phenomenon holds true, but I have yet to interview a witness in Germantown, HarborTown, or Chickasaw Gardens. I have interviewed numerous witnesses in certain other zip codes. I have had guns pulled on me for basically no reason. I have walked in on drug deals. I regularly get challenged. Attorneys don't need this kind of drama.

 

Can perform asset location and forensic analysis with little extra effort. Since the investigator is already out in the field interviewing various parties, it is only a small incremental step for him to subtly inquire about things such as lifestyle changes in general, vacation homes, boats, and art collections etc. Knowing this information up front can prove hugely helpful to the attorney's determination of the resources that will be deployed on the case.

 

I have worked cases, wrongful death inflicted by a bouncer for example, where the attorney was not optimistic about the defendant's insurance company's obligation to cover the tort yet I quickly discovered via interviews that the bar owner owned three other establishments. Additional forensic accounting and legwork can lead to information that “pierces the corporate veil” of those who have tendencies toward hiding and shuffling assets and liabilities among multiple entities.

 

Ability to testify. Attorneys are advocates, not witnesses. They don't testify. Paralegals are viewed as extensions of the attorney. Investigators get the best of both worlds: They are hired by the attorney so they enjoy protections under work product doctrine and attorney/client privilege. Yet investigators remain independent contractors so are allowed to testify about the case on which they are working. Additionally, an ethical investigator gathers facts in an effort to seek the truth and is not viewed by juries as having a dog in the hunt the way an attorney or paralegal would. One of the more distasteful outcomes in litigation is having to be an opposing witness in your own case, which an investigative attorney can set himself up to become. This outcome is particularly brutal given that it usually leads to disqualification from the case.

 

Minimizes need for costly depositions. During an informal interview with an investigator, conducted at a place of the interviewee's choosing, the subject is much more relaxed than in a sworn deposition at a fancy law office with video cameras rolling, court reporters typing, and attorneys heatedly questioning. The informal interview with the investigator is oftentimes exponentially more informative . . . and truthful. An attorney can then decide whether or not to call the witness later. And the witness does not have to feel locked in to his testimony, although the investigator can choose to tape the interview which would have that effect. Either way, the field interview conducted by the investigator affords the attorney much more tactical flexibility.

 

Economical.. In Memphis, most investigators charge anywhere from fifty ($50.00) to one hundred dollars ($100.00) per hour. This is less than the rate at which paralegals are billed out. Plus, investigators are already in the field on multiple assignments so can group interviews and site visits more economically.

 

***

 

Deploying an investigator to serve process is perhaps the easiest and cheapest way to better exploit the private investigator relationship:

 

He is not Rambo. The best process servers are not Rambo-wannabees wearing badges, BDUs, and sidearms. Private investigators are, by nature, empathetic types who think of bonding with people rather than intimidating them.

 

I have helped cases settle by having an open, respectful discussion with the defendant – in one instance his family actually invited me into his home for dinner. The meal consisted of chicken wings cooked on a hot plate on the kitchen table. Given this exceptionally strong circumstantial evidence, I had to report to the attorney that the odds of collection in full were negligible. The defendant was amenable to a weekly payment plan, though.

 

There are always two sides to a story; being a defendant does not mean you are a bad person or have even done anything wrong. Even if there is substantial merit to the action, the fact pattern in the complaint will invariably be over-dramatized.

 

Receipt of the summons oftentimes breeds a highly emotional reaction . . . which will often lead to an excited utterance . . . which means I can testify about said utterance as an exception to the hearsay rule. In about one-third of the cases, the defendant will give me his side of the story in a detailed manner without much prompting.

 

A competent and thorough investigator will read the complaint before serving the summons or subpoena, thereby gaining the requisite background to effectively engage the person. I helped qualify witnesses and once even turned a formerly prevaricating witness to my attorney's side. Witnesses oftentimes shade the truth initially in an effort to tell people what they want to hear and minimize potential conflict, providing one side of the action a false sense of security Yet by gentle questions one can determine that their testimony will actually prove more helpful to your attorney's side.

 

He will find new witnesses. Now, for medical malpractice cases, this is admittedly not as helpful to the plaintiff side because, as much as I believe in investigators' value-added, they can't conjure up people who weren't actually in the operating room, emergency room, or doctor's office. And these witnesses are already known (with some exceptions such as students and equipment reps). From the defendant's side, a good investigator can find someone who is not necessarily partial to the case yet still sees this individual a lot and can vouch for or dispute the degree of injury. Either way, the attorney will surely want to know.

 

My experience is that developing new witnesses will often be a highly productive exercise in cases where the police are involved: Wrongful death, premise liability involving assaults etc. These cases lull people into a false sense of security because reading the police reports will uncover the witnesses they interviewed and it is easy to assume law enforcement is thorough. Yet this list is oftentimes nowhere near exhaustive. And, frankly, law enforcement has its biases which show through in which people they choose to interview and which interviews they choose to memorialize.

 

 

 

I recently was tasked with serving out-of-town witnesses who viewed yet another nightclub-related conflagration (see above). At least no one died in this one, but a bystander was seriously hurt. As part of talking to people during the locate process, I learned that the police arrested the wrong individual. With the help of the bouncers, the real assailant escaped before the police arrived. The innocent person was the defendant in the case I was handling. He became the former defendant in a New York minute.

 

His observations may come in handy later. This holds particularly true when it comes time to collect on the hard-earned judgment. An investigator will take note of the size and condition of the home, the number and condition of cars in the driveway, the furnishings inside, the dress and jewelry of the defendants . . . and anything else that might be interesting. The interplay between spouses can be particularly noteworthy as well. And don't forget that excited utterance that he may have heard!

 

He is a skiptracing professional. There is no excuse for a NTBF . . . period. Everyone is findable, given enough time. And if they aren't in your home city any longer, through field interviews, the server should be able to learn where the subject went.

 

A private investigator's mentality is one of getting the job done rather than that of batch processing. He is not running all over town in an effort to serve as much process as possible daily or even hourly, so will take the requisite time to painstakingly locate a difficult subject. And, at least in my case, I do not even charge extra for a basic skiptrace.

 

He is creative. One of my favorite lines of business is serving Alias Warrants. It has been my experience that about half of these NTBF's are actually right under the server's nose to be readily found . . . they just choose to not come to the door. A primary reason they make this choice is because the server is either the Sheriff or a private server dressed in BDUs wearing a badge. I cannot understand this mentality. Dressing in something innocuous and off-putting is a far better tactical approach. I like to wear tie-died T shirts, for example. If necessary, an investigator will deploy some subterfuge in the form of pizza delivery, flower delivery, courier, long lost high school friend, etc.

 

He is not the Sheriff. See Rambo and Creative sections above. Plus, the Sheriff takes up to thirty (30) days to get the job done and communication with that department about status is well nigh impossible. And the rates aren't really all that different: about thirty dollars ($30.00) for the Sheriff and forty to fifty dollars ($40.00-50.00) for a private serve. My firm will guarantee service if the defendant is in Memphis and will offer same day service at no extra charge for good clients. I would hope that my competitors would do the same. I know the Sheriff doesn't.

 

***

 

Backgrounding is much more than just running the person on PACER, local criminal court site, and doing a local civil court check and merely noting the cases. The computer has made the basic job much easier. Yet a thorough job, which synthesizes information from a wide variety of sources, should be offloaded to an investigator with substantial experience in the area.

 

Public social media is oftentimes surprisingly revealing. It as been my experience that 30-40% of the subjects make most of their walls private, but many of these people still keep their interests and pictures public. Maybe people are vainglorious and can't live without the world knowing what they look like and what they watch on TV. People just seem to enjoy painstakingly compiling their likes and dislikes treatise-like sections of boring minutiae. The only people who truly care about this stuff are private investigators and law enforcement.

 

Two ethical tricks to getting private information from social media. I cannot stress enough to not deal with any investigator who will “friend” your subject. This is clearly unethical. What can be done, though, is to run a historical analysis on the subject's facebook, Twitter page, and/or any other social media pages. Chances are that the opposing attorney instructed his client to remove the public portions of the pages once the litigation process started. But anything that was public before then is fair game ethically and easily obtainable if one knows how to do it. The second trick is to run a search on the social media site in an effort to view the subject's postings on other people's public pages. Oftentimes, they can be quite revealing. And this does not violate any ethical precepts.

 

Knowledge gained helps to optimize the surveillance effort. Surveillance doesn't have to entail sitting in a van for days in a vain attempt to watch the subject perform some act in the front yard. Not only is that terribly boring (although quite lucrative) for the investigator, but needlessly expensive for the attorney and insurance company. Moreover, sitting in vans for hours at a time is an excellent way to “get made.”

 

If the surveillance operative has already done a thorough background of the subject, he will already have garnered a healthy amount of useful habit/movement-type information. As a result, he will be able to intelligently predict where the subject may be at certain times on certain days. So, instead of aimlessly waiting around, the investigator can target those periods and follow the subject to where he is going. Most normal people aren't terribly surveillance-conscious anyway; they are even less so when away from their homes.

 

More to it than just basic computer work. Each case file should be pulled manually and its contents thoroughly examined. You never really know what is in there until you look. I always read contested divorce files with great interest, as they not only contain useful historical information but oftentimes have interesting current items because the parties are continually coming back to court. I recently backgrounded a psychiatrist who, in an interesting twist of fate, was required to submit to psychological testing as part of an ongoing custody battle. His psychologist harped on three auto accidents he caused in the last year. I was previously unaware of this record, but it sure explains why he listed $12,000/year as his auto insurance premiums on his bankruptcy filing. It should be noted that bankruptcy filings are also particularly chock full of information regarding finances, lifestyle and priorities.

 

 

 

Results should be painstakingly compared to the deposition transcript. A good background report will provide the attorney with a solid composite of the subject so he will better know what he is dealing with in the deposition. Secondly, this background will be the basis for impeachment material both on a prima facie basis and on the basis of potential dishonesty exhibited during the deposition answers, which can open the door to the attorney's getting substantially more impeachment material into evidence later. Unlike most other character information, honesty and integrity are almost always relevant and open to attack.

 

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David C. Childe, CFA is a licensed private investigator and principal of Legal Research & Investigation, a wide-ranging investigation company based in Memphis, Tenness

WRONGFUL CONVICTION STUDIES HIGHLIGHT THE NEED FOR ETHICAL AND METHODICAL DEFENSE INVESTIGATION USING THE COMPONENT METHOD

David C. Childe, CFA, as written for the Criminal Defense Investigation Training Council October 15, 2005 and later published in PIBYTES March 10, 2006


Introduction

Since 1988, the advent of DNA testing and more vigilance in general has resulted in over 340 innocent people being released from death-row or lifetime prison sentences.1 This happy outcome, however, merely hints at the extent of the underlying problem of innocent people being found guilty in the first place. After all, DNA testing can only be used to exonerate an extremely small minority of those wrongfully convicted - this sample is by-and-large confined to murder and rape cases where bodily fluid evidence is still preserved and for which the accused was sentenced to death or long-term imprisonment. Extrapolating the data to all felony incarcerations over the last fifteen years would result in a total number of wrongful convictions in excess of 29,000.2

Perhaps the most salient points to emerge from these exonerations are tangible evidence, in microcosm, of how pervasive the wrongful conviction problem is and what the defense investigation industry can learn from it – with particular emphasis on pro-active deployment of The Component Method of Investigation towards the critical areas of focus identified by the in-depth case studies that wrongful conviction cases afford. These areas encompass but are not limited to inaccurate witness testimony, police and prosecutorial misconduct, jailhouse informant testimony, false or coerced confessions, and junk science. This paper will focus on the first two, which are not only the most pervasive but also well within the purview of the defense investigator.

The overarching importance of the investigator and his ethics

Grace Castle, the well-known defense investigator and writer, is particularly vocal about this role - stating that of the cases she has reviewed “none had had the assistance of a professional, competent investigator”. She goes on to point out that “Either the defendant’s attorney or the investigator, or both, plainly had decided that this person was guilty and thus no effort, or at least very little effort, was put forth to assure a fair trial.” 3

Although proper application of the component method cannot magically produce investigators for cases, it can certainly ensure that they will be handled with nothing less than the highest degree of integrity. According to Perron’s Uncovering Reasonable Doubt, in utilizing the component method of investigation “the criminal defense investigator should only be concerned with seeking and pursuing the truth…remain impartial and objective at all times…conduct all investigative tasks in a professional, ethical, and moral manner.” 4

It is incumbent on the ethical defense investigator to only work with high-integrity lawyers. Other than through some type of spiritual conversion, psychologists generally agree that our personalities and values change little after age thirty. Thus, it becomes a pointless effort to try and change a lawyer’s underlying philosophy regarding his clients. Multitudes of solid investigative work performed on a case will be entirely subverted after falling victim to the negative filtering system of a closed-minded defense attorney. Given the unfortunate dearth of highly trained and competent criminal defense investigators, the good ones do indeed have the luxury of being choosy with whom they work.

The twin (and interrelated) problems of misidentification and misconduct highlighted in this paper make a good working relationship with the defendant of the utmost importance. As Perron states, “the interview with the defendant can make or break a case.”5 This means, first and foremost, not prejudging the defendant. Frankly, this should not be a particularly difficult task if the investigator has even a fleeting knowledge of the wrongful conviction literature. A solid measure of empathy for the defendant and active, impartial listening to the defendant during the interview process (the second component of Perron’s method) is also key – not only because it is the morally-correct thing to do but also because eyewitnesses and alibi witnesses known to the defendant (and perhaps not present in the discovery documents) could prove to be case-turners. It can be assumed by the defense investigator that the discovery material provided by the prosecution will oftentimes fall well short of being exhaustive.

INACCURATE EYEWITNESS TESTIMONY

Each study that we have evaluated lists this factor as the most pervasive, and by a wide margin. Moreover, it is axiomatic in the legal community that seemingly credible eyewitness testimony (if provided) is the most decisive factor in a felony trial. The inaccuracies are not necessarily of the perjured variety, either. Human perceptions, particularly under stress and with respect to members of other races, are eminently fallible.

A seminal study by Samuel Gross of the University of Michigan Law School found that 64% of the 340 exonerations analyzed from 1989-1993 involved at least one eyewitness misidentification. In 60 of the 340 cases, the false accusation was deliberate.6 A 2001 Northwestern University School of Law Study analyzing 86 cases of legal exonerations found that eyewitness testimony played a role in the convictions of 53.5% of the defendants and represented the only evidence against 38.4% of them. Only one eyewitness testified in 69.6% of the relevant cases. Moreover, potential eyewitness bias can be inferred in that 32.6% of the eyewitnesses were accomplices and had incentives to testify ranging from sentence leniency to full immunity and another 19.6% were non-accomplices motivated by either a grudge or by prosecution consideration in a pending case.7

Interestingly, this plague of misidentification has been known for a long time, having first been identified in scholarly fashion by Professor Edwin Borchard in his classic 1932 book Convicting the Innocent.8 Yet it has taken the numerous recent exoneration studies to bring this mass tragedy to light. So the question for the defense investigator now naturally becomes: What are its causes? Our review of the research has identified the following:

  • Unscientific and prejudicial police line-up and photo viewing procedure;

  • The susceptibility of eyewitnesses to suggestions by police, whether intentional or unintentional;

  • An oftentimes sub-conscious desire on the part of the victim to feel that justice will prevail in some form;

  • Research by Loftus specifically that indicates that false memories can be triggered in up to 25% of individuals merely by suggestion, that violent events significantly decrease the accuracy of memory, and that memory can be interfered with and altered simply by giving incorrect post-event information.9

  • Research by Wells specifically that indicates that eyewitnesses tend to identify the person on the line-up who most looks like the suspect, whether or not the actual suspect is in the line-up or not10

Given that the recent misidentification research has spawned much prescriptive material for police departmental policies and procedures, it follows that there is now a wealth of new information that can be incorporated within the first component of Perron’s The Component Method of Investigation. Specifically, the investigator should ascertain whether or not the following baseline procedures, which have been vetted by the US Department of Justice, were utilized by law enforcement in its identification processes: 11

  • The individual line-up members or photos should be shown to the witness sequentially, rather than simultaneously;

  • All stages of the identification process should be videotaped;

  • Witnesses should be informed before any identification process that the actual suspect may not be in the line-up or photo array;

  • Line-ups and photo spreads should be administered by an independent examiner who is not known to the witness and who has not been given the suspect’s identity;

  • Witnesses should be asked to rate their certainty at every stage of the identification process.

Witness misidentification problems can also be unearthed during execution of components three and five of Perron’s The Component Method. Component three will yield key observation factors such as weather, degree of lighting, terrain, line of sight, obstructions, and distance. Component five will yield information regarding the witness’s statement congruence with the aforementioned crime scene variables documented by the investigator. A thorough witness interview (component five) will also aim to discover factors such as stress levels, potential intoxication, eyeglass wear, familiarity of observation towards members of other races (if relevant), and duration of the observation of the suspect.

POLICE AND PROSECUTORIAL MISCONDUCT

Scheck and Neufeld report that police misconduct was a factor in 50% of DNA exonerations and that prosecutorial misconduct was a factor in 45%.12 According to Gershman’s 1992 article entitled The New Prosecutors,13 the uncontrolled discretion of prosecutors’ facilitates - among other things - overcharging, vindictiveness, and plea bargaining abuses. Additionally, the police and prosecutors have numerous built-in advantages, including: full utilization of law enforcement resources, better ability to subpoena witnesses, moral suasion, and the ability to access additional funds.

Perhaps the most egregious ethical and legal violation, namely the nondisclosure of exculpatory evidence, represents the arena in which a well-trained and diligent defense investigator can make the most impact using the component method. In the majority of cases, this evidence relates to law enforcement and/or prosecutorial abuse of eyewitness accounts of the incident – including both errors of commission (e.g. perjured) and errors of omission (e.g. nondisclosure). Thus, starting with component one, the investigator should thoroughly examine all witness statements and testimony for inconsistencies – including those to the responding officers, those to detectives, those to prosecutors, and those to the grand jury. Another red flag that can be garnered from analysis of the statements and testimony is the evolution of an individual’s statements from the general to the specific, an inherently counter-intuitive process that oftentimes represents coaching on the part of the prosecution or of law enforcement. Errors of omission are also of critical importance in this review, so particular emphasis should be placed on those witnesses who may have made earlier statements to the police yet were not summoned to testify before the grand jury, with the inference being that their testimony would not be particularly congruent with prosecution theories of the case.

Components four and five can be utilized to pro-actively identify, locate, background, and interview all potential witnesses – both alibi and eyewitness, whether disclosed or undisclosed. The investigator should not be deterred by the hazy category of so-called “prosecution” witnesses – they are as fair game for the defense as for the prosecution. Their statements to the defense investigator should be thoroughly compared to existing statements and physical analysis of the crime scene. Their backgrounds should be checked exhaustively, with particular emphasis on character, past criminal activity, and potential deals cut with law enforcement or prosecutors. Any witnesses recently or currently incarcerated should therefore receive extra scrutiny, given the potential leverage that could be exerted over them. With respect to names provided by the defendant, each one should be checked out and then hopefully pyramided into other names by in-depth interviewing. In short, witnesses identified in discovery materials represent merely an excellent starting point in a thorough investigation.

CONCLUSION

From every corner, the wrongful conviction literature shouts out for more thorough and higher-caliber defense investigation. It can be viewed as nothing short of a call to arms for the industry. Without adequate investigation, a defense attorney is defending his client with little or no ammunition whereas the firepower of the prosecution side can oftentimes be enormous. As F. Lee Bailey states: “a good investigator is generally more valuable to a defendant’s case than a good lawyer.” Thorough schooling in and consistent application of The Component Method of Investigation will allow the investigator to maximize this value that is so central to the fair operation of our justice system.

WORKS CITED

(1) The Journal of Criminal Law and Criminology: 2005; volume 85, number two. Exonerations in the United States 1989 through 2003, by Samuel Gross, Kristen Jacoby, Daniel Matheson, Nicholas Montgomery, and Sujata Patil.

(2) The New York Times, April 19th 2004. Study Suspects Thousands of False Convictions, by Adam Liptak.

(3) Speech delivered to the Investigators Superconference August 24th, 2002. “Wrongful Convictions – Our Nation’s Disgrace”, by Grace E. Castle CLI.

(4) UNCOVERING REASONABLE DOUBT. The Component Method. Criminal Defense Investigation: 1998. Brandon Perron.

(5) UNCOVERING REASONABLE DOUBT. The Component Method. Criminal Defense Investigation: 1998. Brandon Perron.

(6) The Journal of Criminal Law and Criminology: 2005; volume 85, number two. Exonerations in the United States 1989 through 2003, by Samuel Gross, Kristen Jacoby, Daniel Matheson, Nicholas Montgomery, and Sujata Patil

(7) Working Paper presented at Andrews University – Berrien Springs, Michigan on May 2nd, 2001. How Mistaken and Perjured Eyewitness Identification Testimony Put 46 Innocent Americans on Death Row-An Analysis of Wrongful Convictions since restoration of the death penalty following Furman v. Georgia, by Rob Warden.

(8) Convicting the Innocent: 1932. Dr. Edwin Borchard

(9) Psychology Today, January 1996; page 48. The diva of disclosure, memory researcher Elizabeth Loftus, by Jill Neimark.

(10) Annual Review of Psychology: 2003; volume 54. Eyewitness Testimony, by Gary Wells and Elizabeth Olsen.

(11) Eyewitness Evidence: A Guide for Law Enforcement: 1999. The National Institute of Justice (DOJ).

(12) Actual Innocence: 2000. Barry Scheck and Peter Neufeld.

(13) University of Pittsburgh Law Review: 1992; volume 53. The New Prosecutors, by Bennett Gershman

ENDNOTE ON COMPONENT SIX

The culmination and crystallization of an investigator’s body of work on a case is reflected in the written product to the attorney and in his testifying in open court (which Perron addresses this in component six). Thus, if superior oral and written communication skills are lacking, the gist of the investigative findings may never find their way into the public arena. Ultimately, this is the only factor that really ends up counting.

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