Include a Defense Investigator in an “Ideal Defense.”

Any conversation with a client about a lawsuit will ultimately include a discussion about the expenses associated with the case.  With a civil case, that conversation can be simply a matter of a business analysis for the client, i.e. is it worth the investment in the litigation against the risk.  In the criminal context, the consequences are generally too significant to ask a client to make such a “business analysis” weighing risk against investment.

In my practice, I typically talk with criminal defense clients about what I describe as an “ideal defense.”  The client and I then discuss together what constitutes an “ideal defense” and, of course, what is the investment related to the various tools of an “ideal defense.”  Mind you, quite often we cannot have all the tools the client and I would prefer and still get remarkable results.  But, as an ethical matter, I make it a point to explain to the client all the options and tools that are available to investigate and prepare a defense.

One tool I insist on in serious felony cases is including a budget to invest in a private investigator for the defense.  Without fail, the cases I’ve defended with an investigator on the defense team have seen better results than they would have had we not had that tool.  In fact, I can tell you about an alleged “he said she said” rape that was on its way to indictment before our investigator uncovered critical images from the hotel surveillance cameras showing the complainant and our client in various “passionate embraces” throughout the night.  In that same case, our defense investigator found witnesses whom hinted to the various “companions” the complainant had been with during the previous night.  Try as I might, it is highly unlikely that I would have ever acquired the same evidence had I tried to hit the pavement myself.

Simply stated, a great defense investigator will have a skill set to organize his investigation and to acquire and document the evidence and testimony from witnesses.  Moreover, an investigator with police training will be able to give the attorney insight into the police interviews of witnesses and the defendant.  An investigator trained in police tactics will always have a better insight into police thinking, assumptions, and tactics.

Maybe even more important, an attorney may be ethically barred from interviewing the witnesses himself.  An attorney interviewing a witness is immediately placed in jeopardy of becoming a witness in the matter.  Rule 3.7(a) of the Ohio Rules of Professional Conduct specifically prohibits an attorney from taking on a role as a witness.  It reads “[a] lawyer shall not act as an advocate at a trial in which the lawyers is likely to be a necessary witness unless” one of exceptions apply.  Suffice it to say, there is no such exception for a criminal defense attorney defending his client where a witness changed her story.  The comments to the Rule make it clear that an attorney taking on the role as a witness “can prejudice the tribunal and the opposing party.” 

Imagine that a witness gives testimony at trial that is different from the statement given to the attorney previously.  The attorney is forced to then pursue a line of questioning on the point of the prior interview with the witness – this questioning alone may not be admissible, leaving the jury with no other testimony other than the witness’ new version.  Having an investigator on the defense team, will eliminate that risk and give the defense tools which better match the prosecution.  This creates a more “ideal defense.”

Think Twice Before You Waive Your Preliminary Hearing, Then...Don't.

If there is one powerful tool in the defense of a criminal case that is more often overlooked than any other, it is the preliminary hearing.  Too often defense lawyers advise their clients to waive their right to a preliminary hearing because they estimate the likelihood of success on the merits to be low.   That should not be the deciding factor.  Admittedly, the standard of proof at a preliminary hearing is a mere probable cause, i.e. whether it is "more likely than not" that the offense was committed.  Nonetheless, in Ohio, Rule of Criminal Procedure 5(B) provides for the right to a preliminary hearing.  Although the Ohio Rules of Evidence do not except preliminary hearings from the evidentiary rules and Crim.R. (5)(B)(2) references "the rules of evidence prevailing in criminal trials generally," the rules of evidence tend to be rather fluid during a preliminary hearing.  But see, State v. Mitchell (1975), 42 Ohio St.2d 447. Still, the rule provides the defendant the full right of cross-examination.  The burden of proof remains, however, only "probable cause."

Even with the revisions to the discovery procedures in Ohio Rule of Criminal Procedure 16 to provide more open discovery, there is no substitute for the opportunity to hear the investigating officers or possibly a victim testify live and subject to cross-examination early in the matter.  Unlike some states, Ohio does not allow discovery depostions in criminal cases.  That is to say, a criminal defendant does not have the opportunity to take the sworn deposition testimony of an officer or other witness in preparation for trial. 

Heck, no witness - especially the police officer - is obligated to talk with the defense.  And, candidly, they will typically be advised by the prosecutor or the prosecutor's victim advocate department not to speak with defense representatives.  This is all the more reason an opportunity for a preliminary hearing mustn't be squandered.  I personally can recall a number of criminal defense matters we handled which ended in an acquittal or conviction of a much less significant offense only - and I mean only - because we took the prelminary hearing.  For instance, I can recall an officer testifying to a rape theory that was simply not supported under Ohio law leading to dismissal.  Or a matter wherein an officer had previously testified at the preliminary hearing to what the victim had described during the investigation only to hear the victim testify differently at trial and the officer claiming he didn't recall either way.  With the officer's preliminary hearing testimony, not only was the officer impeached, but so was the victim - only because we took the time to actually take the preliminary hearing.

Mind you, some court's make an effort to discourage the preliminary hearing due to the delays it might cause in a court's schedule.  That said, absent a substantive reason for waiving the hearing, defense attorneys that advise clients to waive preliminary hearings are doing so at the client's peril.  Unfortunately, if they don't take the preliminary hearing, they will never know how the client ultimately suffered.  That might be the larger tragedy.

Can an Indigent Get an Effective Defense Even With Retained Counsel?

A principal often overlooked by private criminal defense attorneys, is a defendant’s right to court appointed assistance where the defendant is himself indigent - despite the assistance of family and friends in retaining counsel.  Too often privately retained attorneys advise their clients that they will need private funds to retain necessary investigators and expert witnesses despite the fact the client is himself indigent.  Such an error can have the effect of denying the defendant an adequate defense and wrongfully accused persons find themselves convicted.

Every defense attorney will understand that there is no longer any “doubt that an effective defense sometimes requires the assistance of an expert witness.  This observation needs little elaboration. *** Moreover, provision for experts reasonable necessary to assist indigents is now considered essential to the operation of a just judicial system.”  Williams v. J.R. Martin (1980), 618 F.2d 1021, 1025.  This basic principle is now outlined in the American Bar Association standards on defense services.  The ABA standards require that indigent defense be provided “investigatory, expert and other services necessary to an adequate defense.”  ABA Standards, Providing Defense Services, 22-23 (1968).  The notes to the standards make the point clear; the “quality of representation at trial may be excellent and yet valueless to the defendant if his defense requires ... the services of a(n)...expert and no such services are available.”  Id.

But, many defense attorneys fail to recognize that there is a right to state funds even where counsel is privately retained but the defendant remains indigent.  This is rather common occurrence where family and friends expend all their precious funds to retain private counsel, but reserve no monies to retain the appropriate defense experts.  Where the accused remains indigent, he continues to be entitled to government funds.  Indigence “is not an absolute concept *** For example, a defendant’s resources may be drained by the expenditure of obtaining private counsel.  Thus while a defendant can afford private counsel, he or she may not be able to afford other costs of the case such as an investigator or expert witnesses.”  State v. Pasqualone (March 31, 1999), Ashtabula App. No. 97-A-0034, unreported.