Criminal Defense Investigations: Understanding Law Enforcement
I dare to write a post concerning the job of a criminal defense investigator, as it relates to dealing with law enforcement, but thought it might be a worthy read to those who have preconceived notions and/or do not fully understand the job of a criminal defense investigator.
Let me preface this article by clarifying that I retired from a law enforcement career that spanned over 20 years, and have the utmost respect for the profession. Moving to the private sector and working for the “other side” has been an experience, mostly good, but nonetheless an experience. But for those that believe retired law enforcement, which makes up a large portion of the private investigation profession, have an easier ride dealing with police and prosecutors, that is misconception number one. For the most part there is a mutual respect, but there are always a few in the law enforcement community that flat out don’t want to deal with private investigators working criminal cases.
When an individual is charged with a crime, they have absolute rights under the United States Constitution. In particular, the 6th Amendment guarantees the Right To A Fair Trial, and the 14th Amendment provides assurances of due process.
Included with those rights, which we all enjoy, are representation by legal counsel. Most everyone is aware of that. We all watch police shows and know the first declaration a police officer makes to a person they just slapped the cuffs on, is that they have two basic rights: to remain silent and to speak with an attorney. This is outlined in the 1966 Supreme Court decision: Miranda v. Arizona.
If I learned one thing during my years in law enforcement was that most everyone I encountered or arrested knew one phrase well: “I know my rights,” even though many failed to assert them. But just in case they missed an episode or two of COPS, I would advise them of their rights anyway when it was necessary.
Moving forward, the prosecution has the “Burden of Proof” when presenting the government’s case to a jury. They must prove beyond a reasonable doubt that a crime was committed, and the individual they have charged most likely committed it. There are several different types of evidence that the prosecution can present, each having the potential to be challenged.
The defense has the responsibility of “Uncovering Reasonable Doubt,” in other words, challenging the credibility of the prosecution’s evidence. If a jury has any doubt in their minds regarding the evidence, they have the responsibility to find the defendant not guilty.
Prosecutors have an advantage over the defense, mostly in the way of unlimited law enforcement resources, experts, etc., all at the expense of taxpayers. And, more importantly, even though a defendant is innocent until proven guilty by an impartial jury of their peers, it’s only natural for someone, including a juror, to assume the police probably arrested the right person; thereby, implying that the person is guilty until proven innocent.
The defense has hurdles to overcome before they even get to the starting line. Most people charged with crimes do not have unlimited resources. Private investigators, or criminal defense investigators, have a unique task of assisting defense counsel with examining the evidence used to charge their client and determine what, if any, can be challenged. A defense investigation can be just as exhaustive as a police investigation, but with much less time, funds, manpower, and other resources to work with.
Choosing the right private investigator in a criminal defense case is just as important as having a good attorney to represent you. Unless you are negotiating a plea, having an independent investigation can mean the difference between jail and freedom.
Evidence can be flawed, and many times is for one reason or another. This is a topic in and of itself for another post. And while it’s the job of the criminal defense investigator to help uncover reasonable doubt, contrary to what some clients (and even a handful of police officers) believe, it’s not the job of the criminal defense investigator to manufacture “evidence of innocence.” This is the very first thing I advise a client in a criminal defense case. And unfortunately, even though most police officers and prosecutors are professional and understand a person charged with a crime is entitled to due process, there are those that have another misconception that criminal defense attorneys and investigators get up early every morning trying to figure out how they can destroy the police investigation by any unethical means necessary. This is just not the case.
As I mentioned earlier, it has been my experience that most police officers and prosecutors respect the work criminal defense investigators do. But there are a very small percentage of police officers and prosecutors that despise anyone that might question their investigation, and even worse, defend an individual charged with a crime. Criminal defense investigators didn’t draft the Bill of Rights,but like police officers, have an obligation to uphold it. For those that do not respect an individual’s rights, law enforcement is probably not a good career choice.
Unfortunately, these biases can create another obstacle at times, and it is important to have a criminal defense investigator who is willing and able to navigate through the occasional path of hypocrisy. It’s not easy, but can be done.
Having worked complex investigations as a police detective, I understand how difficult it is to build a criminal case and respect the frustrations that police experience in the process. But I always viewed defense attorneys as worthy adversaries, not enemies, and respected the job they do. Most, if not all, started their careers as prosecutors. This holds true for criminal defense investigators, many are former law enforcement officers.
There are bad apples in every profession, police included. We live in a world of checks and balances. More importantly, even though it is far from perfect, we have the best criminal justice system in the world.
Understanding the nature of law enforcement and knowing what obstacles to expect at times, can be half the battle in conducting an effective criminal defense investigation. Without that insight, it can be difficult.
The first big case I investigated as a police officer was an attempted murder. A lady shot her husband at point blank range with a shotgun. Surviving this was nothing short of a miracle. It seemed like a cut and dry case: A lady shot her husband, showed me where the weapon was, and told me that she planned on killing him that day. Her family hired the most prominent Berks County, if not east coast, defense attorney to represent her. I was working with a young prosecutor at the time, now also a prominent defense attorney.
This case went to trial, and despite my belief that this would be a sure conviction, the lady was acquitted of all charges. Her attorney argued for the first time in Pennsylvania that this was a case of Battered Woman Defense Syndrome. Testimony from defense witnesses including their children and experts, was compelling even to me. After the second day of the defense evidence, I was convinced that she should be acquitted – and she later was.
The defense attorney saw me about a week later and asked me if I were upset with him like the prosecutor, but I told him no, and thanked him. He asked for what? I told him that after this experience I realized that my job was not about “winning cases,” and that the police were only one spoke in the wheel of justice. And furthermore, I was glad to have the experience as a young police officer because it would help me throughout the remainder of my career understand the role of law enforcement – “it’s not about winning, it’s about justice.” The attorney was grateful for the respect I showed him as a defense attorney, and how tough his job could be. We became very good friends and I learned more from him throughout my career than any academy or other training could have possibly taught me. I would much rather he school me on common ground than in a courtroom.
If you set your sights on winning, you’ll lose sight of justice.
Rest in peace, Manny (Dimitriou).
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