Chapter 3 The Investigation

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 3 The InvestigationProsecutor and Investigator Cooperation

An investigation of the crime naturally occurs prior to an arrest, even if it is a very abbreviated investigation. (An example of an "abbreviated" investigation would be determining that the victim is, in fact, dead while the killer is confessing and is arrested at the scene.) The investigation, nevertheless, should continue after the arrest. As has been noted, prosecutors must work to ensure investigators don't view an arrest as the end of the case. There is often the temptation for investigators to relax after the arrest of the suspect and to turn their attention to another unsolved case. But the "success" of a case for the government, for the victim's family, and for justice is the successful conviction of the person who committed the crime, and then the successful defense of that conviction on appeal. There is also always a need for investigative assistance during the trial.

A prosecutor should meet with the investigators very early in the case to discuss the direction of the investigation. The prosecutor should ensure that every investigator understands what evidence needs to be gathered during the investigation. The skilled prosecutor will realize that evidence will be needed that establishes

• whether this killing was a murder.
• who committed the murder.
• who ordered or decided that the murder be committed.
• how the murder was committed (e.g., what kind of weapon).
• why the murder was committed (motive).
• where and when the murder was committed.
• the elements of the offense (premeditation, intent, etc.).

Other evidence will be needed as well:

• Evidence establishing or rebutting potential defenses (e.g., alibi, insanity, self-defense).
• Evidence that may be useful in court (prior convictions, military records, articles written by expert witnesses, etc.).
• Evidence that may be used in sentencing (victim's circumstances and family members' statements, prior convictions, mental health examinations, etc.).

A prosecutor can and should participate in a continuing dialog with the investigators as they decide upon various interviews and searches. The motive for the killing, though not usually an element of the offense, is evidence the jury will expect to hear.¹ Common motives include money or financial concerns, domestic jealousy (or a new partner), political/religious/racial hatred, elimination of a witness, terrorism, revenge, or gang warfare.

Prosecutors' Immunity

Prosecutors are absolutely immune from lawsuits under 42 U.S.C. § 1983 when the prosecutor is acting to initiate and pursue criminal charges.² "Acting to initiate and pursue criminal charges" includes those core duties of a prosecutor necessary for the presentation of a case in court that embraces all of the prosecutor's traditional official functions. Prosecutors performing other functions have only the qualified immunity that is enjoyed by other governmental officials performing discretionary functions. "Qualified immunity" means that a governmental official performing a discretionary duty will only be liable if that official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.³ "Qualified immunity" is still a high degree of immunity.

Advice to police is a discretionary function and results in qualified, not absolute immunity.⁴ Further, if a prosecutor swears to the facts in an affidavit supporting an arrest warrant, the prosecutor is acting as a witness rather than a prosecutor. When the prosecutor acts as such a witness the prosecutor is entitled only to qualified immunity. Therefore, false statements in the affidavit could be the basis for a lawsuit where the prosecutor's defense would be qualified immunity.⁵

Writing Factual Reports

One thing the prosecutor should do is to encourage investigators to write reports that contain facts instead of conclusions. Using active language in reports can help achieve this goal. For example, a report that says, "Further investigation has revealed that the suspect was at Joe's Bar one hour prior to the attempted holdup of that Bar," does not help a prosecutor know what evidence to produce in court to demonstrate that fact. It is far better if the investigator writes, "I interviewed Mary Higgins, on June 4, 2009, at her place of business, Second Security Bank at 410 Main St. She told me that she was at Joe's Bar from about 10 pm until 11:30 pm on March 3, 2009. (The attempted robbery of Joe's Bar occurred at about 12:32 am on March 4.) She told me that she saw the suspect sitting in a corner booth as she left the bar. She knows him because. . . ." This is written in active, factually oriented language that gives a prosecutor the knowledge that the witness needed to establish that the suspect was at the bar is Mary Higgins. The point is that in written reports it is far better to have facts rather than conclusions.

Investigative Subpoenas and Depositions

Many jurisdictions have provided for investigative (or "prosecutorial") subpoenas or investigative depositions.⁶ These are tools that law enforcement can use to gather documents or compel witness interviews in furtherance of a criminal investigation. A prosecutor can assist law enforcement in deciding when to use these tools and in drafting the applications for these types of orders.

Searches During an Investigation

While the investigation is underway the investigators will need legal advice about searches. Investigators need to be encouraged to come to the prosecutor for advice on every search, if possible. Prosecutors should be able to advise investigators quickly and accurately concerning searches.⁷

The advice given to investigators will, of course, be heavily driven by facts, starting with the processing of the crime scene. Remember, there is no "murder scene" exception to the requirement for either consent or a warrant to search a crime scene where a person has an expectation of privacy.⁸ An "emergency" doctrine may get the police inside a house to begin with, but when the first responders to the scene determine the victim is dead and there is no immediate threat to another, the emergency no longer exists.⁹When investigators want to search, one must first analyze whether the area to be searched is an area protected by the Fourth Amendment. Of course, an informed and voluntary consent cures all constitutional challenges to a search, and a valid search warrant should overcome future objections.¹⁰ Still, there may be a need for a search in an area not protected by the Fourth Amendment, and it may be impractical to obtain consent or a warrant.

A couple of potential search sites that are outside of the Fourth Amendment's protection include areas covered by the open fields doctrine¹¹ and abandoned property covered by the garbage/old trash bag exception.¹² Another example of a search not requiring a warrant is illustrated by the case of Cardwell v. Lewis,¹³ in which the defendant had been arrested and his car had been towed to the police impound lot. The next day external paint scrapings were taken and the car's tire treads were examined. The U.S. Supreme Court ruled that the examination upon probable cause of the automobile's exterior did not require a warrant.¹⁴

If the crime scene has been burned, one should be aware that an administrative warrant is sufficient if the primary objective is to determine the cause and origin of the fire, but a criminal search warrant is required when the primary object of the search is to gather evidence of criminal activity. People can also have a reasonable expectation of privacy in a fire-damaged home if they have made arrangements to secure it in their absence.¹⁵

While this book is not designed to teach the law of search and seizure, it is still worth mentioning that there are several other exceptions to the requirement for a search warrant such as plain view,¹⁶ aerial surveillance,¹⁷ and vehicle exceptions.¹⁸ There are also inspections or searches that need no warrants, such as those conducted in international waters, at airports of arriving international flights, at our borders, or at entrances to airport security zones and military installations.

The prosecutor should carefully prepare the application for the search warrant. Just as facts are better than conclusions in a written investigation report, facts rather than conclusions in an application for a search warrant are essential.

Bulletproofing Search Warrants

Constitutionally conducted searches render evidence admissible. Because a blunder in the area of searches is a violation of constitutional magnitude (not just a "technicality"), a poorly conducted or poorly drafted application can literally result in someone getting away with murder. Take, for instance, the double-murder case of Robert Kleasen,¹⁹ whose actions, some have suggested, were the basis for the film The Texas Chainsaw Massacre.²⁰

In 1974, Mark Fischer and Gary Darley often visited Kleasen for dinner at his place near Austin, Texas. Fischer and Darley were missionaries for the same church that Kleasen attended. They went to Kleasen's place on October 28, 1974, to tell him that church officials had determined that they were not to visit him anymore. They were never seen again. On November 5, after obtaining a federal search warrant for Kleasen's house trailer and surrounding property, federal agents found a prayer book and name tag belonging to Dar-ley. Both contained bullet holes. They also found a key ring with keys that fit the missionaries' car and apartment and a Seiko watch belonging to Darley. The missionaries' car was found stripped. The wheels and license plate were found in the building next to Kleasen's house trailer. A band saw in the taxidermy shop behind Kleasen's house trailer was seized and...