Defense Investigation

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 167-191

167

CHAPTER 8

DEFENSE

IN VESTIGATION

PART A. GENERAL ASPECTS OF DEFENSE

INVESTIGATION

§ 8.01 Introduction; Scope of the Chapter

As defense attorneys lear n very early in their ca reers, most cases tur n primarily on t he

presentation of evidence rather than on legal argument. The fact s are counsel’s most

important asset not only in l itigating the case at t rial but also in every ot her function

counsel performs: urgi ng the prosecutor to drop or reduce charges, negotiati ng a plea

bargain wit h the prosecutor, urging a favorable sentencing recommendation on a proba-

tion officer or judge.

Investigation is the principal method by which counsel gathers the facts s/he will

need. Although there are additional i nstruments for fact-gathering, such as discover y (see

Chapter 9) and motions practice (see Chapter 7), they are far less reliable and compre-

hensive than the time-honored practice of hitting the streets and looking for witnesses.

One key aspect of defense investigation, t he interview with the client, is described in

Chapter 5. The following aspects of investigation are discussed in the present chapter:

1. Locating and interviewing defense wit nesses (see §§ 8.06–8.10 infra);

2. Interviewing and taking statements from prosecution witnesses (see §§ 8.11–8.15

infra);

3. Observing the scene of the crime and other relevant sites (see § 8.05 infra); and

4. Gathering documents and exhibits (see §§ 8.16–8.19 infra).

An additional form of invest igation—the retention of expert witnesse s to investigate

specialized issues in the case—is discussed in Chapter 11.

168 | Tria l Manual for Defense Attor neys in Juvenile Delinquency C ases

§ 8.02 Using the Defense Theory of the Case

to Guide the Investigation

As explained in C hapter 6 supra, counsel should develop a defense theory of the case

and use it to guide the invest igation. Since counsel’s time and resources are not unl im-

ited, the investigation must be selective —often painf ully so. Development of a the-

ory of the case will make possible conscious selectivit y and thoughtful as signment of

priorities.

Almost always, one iss ue, or a very few issues, should stand out as hav ing paramount

importance. W hereas the prosecution must prove all the elements of its case, the defense

need do nothing more than dest roy one element of the prosecution’s case. It is seldom

profitable to take on more than one or, at most, a couple. Hence the defense should aim

at the few weakest points in the prosecution’s case or at the few strongest points in the

respondent’s defense.

Also as explained in Chapter 6, however, counsel must avoid becoming a prisoner

of his or her theory. In the search for facts t hat support the defense theory, counsel

must be alert to those that do not and to facts t hat suggest a preferable theory. In short,

counsel must go to the sources th at are most likely to contain in formation relevant to his

or her theory, but while s/he is tracki ng down those sources, s/he must gat her all other

information potentially germane to the case that ca n be gathered with litt le additional

time and effort . Counsel also must constantly reevaluate what s/he has t hus far gathered

and determine whether to keep on the same t rack or switch to a new one. By keeping

his or her eyes open and plans f lexible as s/he pursues the places of most li kely paydirt,

s/ he may find unexpected nuggets that call for digging in new directions. Counsel must

always have priorities but be wil ling to change them.

§ 8.03 Starting Promptly and Preserving

Perishable Evidence

Counsel’s first priority should be to est ablish a rational order of priorities. To do this,

counsel must know something about the case in broad outline. In addition to interview-

ing the client and hearing his or her version of the events, counsel will need to know

something about the prosecution’s version. Since the discovery process descr ibed in

Chapter 9 may take some time and since most police officers are unwill ing to talk with

a defense attorney or investigator, the fastest and most effective technique for learni ng

the prosecution’s version of the events is to go to the police station and obtain a copy of

the incident report filled out by the pol ice at the time of the complaina nt’s first report of

the crime. See § 8.19(a)(1) infra.

Speed is generally essential in i nvestigation. Physical facts change. An object of

importance may be disca rded. Witnesses may disappear or forget. Particularly in urban

areas, individuals are highly mobile. They may go away suddenly and leave no trace.

Or if they remain i n the area, they may quick ly blend into the neighborhood, becom-

ing impossible to locate as their principal identifying characteristic—proxi mity to the