By Collin County Lawyer Jeremy Rosenthal
Here are the previous articles I’ve written about principles of defending people in this series:
Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired. The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.
In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.” This is squarely the truth in investigating a case.
What Constitutes a Thorough Investigation?
It obviously depends on the case. Not every case is capital murder. The list of what needs to be done to investigate in some cases can be endless. Examples of research needing to be done includes (but certainly isn’t limited to):
- Thorough interviews of witnesses (including your own client);
- Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
- visiting the scene of the accusation;
- inspecting physical evidence in possession of the police;
- independent lab analysis or confidential re-testing of certain evidence;
- Hiring an expert witness to assist with complex issues;
- Reviewing public documents such as previous court records;
- Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;
Pursuing a Theory
A major difference between a Defense investigation and a police investigation is the theories we pursue. A Defense investigation shouldn’t be scatter-shot. It needs to be focused towards a particular theory or theories in a particular case. Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.
Why Don’t Some Lawyers Investigate?
There are multiple reasons. First, is lawyers didn’t go to investigation school, they went to law school. An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.
Second, many lawyers are afraid of what they’ll find. They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.
Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.