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.”
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