All attorneys are comfortable working at their desks, some attorneys are comfortable in court, but very few attorneys are comfortable doing street investigation. And unfortunately, it is often the work that was not done on the street that leads to wrongful convictions, and no amount of desk work or court work can ever fix it.
When the defense attorneys' entire "investigation" is based on the materials supplied by the prosecutor (police reports, witness statements, forensic testing, etc.), they are operating based on evidence created for the purpose of convicting their client. They are relying on investigative reports created by police officers and scientific testing often done by police officers in lab coats.
I first learned this valuable lesson while working on a death penalty appeal in Chicago. My client was convicted of a double homicide and sentenced to death as the result of a plea bargain. The defense attorney did no investigation and concluded that my client was guilty based upon a witness statement gathered by the police investigators.
Had the lawyer simply driven by the crime scene he could have determined that the witness was lying because it was impossible to see the crime scene from the location the witness had been standing.
Instead, the lawyer plead the defendant guilty to a double homicide and she received the death penalty without the benefit of a trial where she likely would have been acquitted.
As the director of the California Innocence Project, I teach my students to be good investigators and make sure they meet some innocent people who have been exonerated, so that they will never forget that sometimes, innocent people go to prison.
I teach them that they cannot just investigate from their desk. Sometimes they are going to have to go out into the real world where crimes happen
For practitioners, a good place to start improving the quality of your investigations is to create an investigative library.
For our students, we find and purchase the same reference books that private investigators and police detectives have on their shelves. We also have invested in the software and hardware needed to access online databases, including public records such as property records, court records, tax records and marriage records.
Often these records are useful in finding people, but attorneys also need to be skilled in interviewing. Once a subject is found, an attorney should create a pre-interview plan. Interviewing witnesses as part of an investigation is markedly different from client interviews or direct or cross-examinations. Your target has no obligation to speak with you and you must convince them to do so.
A different approach may be required if the subject belongs to a "special" group such as military personnel, police officers, minors, gangs and crime victims.
Before live or telephone interviewing, our students develop a list of objectives and questions and think about the best way to get the subject to cooperate.
Finding evidence is another skill that attorneys need. Evidence is often lost, or as many clerks in California like to say, "Missing, but not lost." In my experience, people find it much easier to tell you that evidence is not available over the phone than in person -- another reason to leave your office.
Even if you have the resources to hire investigators, it's still important to know what they can do and should do in order to direct and supervise an investigation. However, there is no substitute for conducting your own investigations in order to learn from the ground up.
Brooks is a professor at California Western School of Law where he is the executive director of the Institute for Criminal Defense Advocacy and California Innocence Project. Brooks also directs the Annual Janeen Kerper Trial Skills Academy at California Western.