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Chicago Private Investigators and Detective Agency - Calrson Investigations, Inc.

Illinois Private Investigations based in Chicago

Publications by Susan Carlson, CLI, CRT

“TO PLEA OR NOT TO PLEA - THAT IS THE QUESTION”

The Role of the Professional Investigator in the Decision Making Process

by Susan Carlson, CLI, CRT

Most criminal cases do not proceed to a trial, but rather are settled with a plea bargain. The decision to accept a plea is often complicated and is reached upon agreement between the defendant and his or her attorney.

A professional investigator can help in this process.

Just as a defendant relies on his or her attorney for advice, an attorney relies on the advice and information provided by the criminal defense investigator. It takes a team effort to reach a successful plea agreement.

If defense witnesses are extremely weak and the prosecution case is strong, it may be better to accept a plea offer, rather than risk a trial. A skilled investigator is able to advise the attorney what to expect from both the witnesses and the physical evidence.

When a professional investigator is called to work a case, there may or may not already be a working theory in place. If the theory has been established that the defendant is innocent, the attorney may dispatch the investigator to interview certain witnesses who have given statements and/or find new witnesses who might be available to support the theory of the case. The attorney is looking for exculpatory information that may lead to acquittal.

Often the theory of the case is fluid and may change as information unfolds. An interview of one witness may reveal new facts or lead to additional, previously unknown witnesses. The investigator must be able to evaluate witnesses not only for truthfulness, but also as to how his or her demeanor, appearance, background and other factors may articulate to the court. Good interview skills and a solid understanding of body language and paralinguistic behavior are important. The attorney wants to know if the witness will hold up under a vigorous cross-examination and does not want to be surprised with any negative information that could lead to impeachment or otherwise negatively impact upon a jury.

Physical evidence must be evaluated. An experienced professional investigator is often in a position to secure expert witnesses to refute State's evidence. A solid understanding of ballistics, tool mark, fiber, DNA, toxicology and other mediums can prove to be an invaluable tool to the investigator when looking for experts to join the defense team. It helps to be able to communicate with a basic common language.

A sharp investigator, well-versed in forensics, is a valuable asset to criminal defense attorneys. The investigator can pour through Discovery to determine if a prosecution theory can be attacked or if the defense can develop an offense by undermining a prosecution's expert witness. This can be key to determining what is best for the defendant: A trial or a plea?

In determining whether or not to accept a plea bargain or to go to trial, diligent defense attorneys want to know if the physical evidence against their client is going to hold up in court or reveal a weakness in the prosecution's case. The investigator can capitalize on the need for this knowledge and advise as to the pros and cons of certain evidence.

Although the criminal justice system supposedly relies on the proposition that the burden of proof rests upon the prosecution, often times this is not reality. The defense team may have to prove innocence. The decision to go to trial can have grave consequences if the defense is not armed with evidence that speaks convincingly to the jury, or the judge if the defendant elects to have a bench trial. Those experienced with the criminal defense bar understand that it is not always the truth that matters, it is the proof.

If the investigator is able to find no exculpatory evidence, a decision to accept a plea deal may easily be reached. In some cases, the mere offer of a plea can be a gift. On the other hand, if evidence is overwhelming that the client is innocent, then the path to a trial is the one to take. The reality is that most cases fall in between these two extremes and one has to picture the scales of justice to see how much weight is neces-sary to tilt the scales in either direction.

The investigator must also be able to look at inculpatory evidence. If there is information that points to guilt or has a negative impact and there is no way to successfully attack it or provide reasonable doubt, this must be taken into account and the defense attorney properly notified. It is important to ask whether or not to include this information in the investigative report. Most attorneys do not want a written record of the "bad information" but they certainly do want to know if it exists.

As the investigator is working the case, the defense attorney is sizing it up to determine if the case should go to trial or be pled out. Frequently, the decision is made at the last minute ... sometimes on the courthouse steps.

Whether or not to accept a plea is a decision that a defendant should not make lightly. It is not the investigator's job to advise either way, although often the defendant may ask his or her opinion. In this instance, it is best to state that we are not attorneys and as such, are not able to give legal advice.

It is, however, the job of the investigator to advise the attorney-client of the credibility of the evidence and to provide the facts so that he or she is best able to advise the defendant whether or not to plea. A skilled investigator, working a criminal defense case, is a strategy consultant and to that extent, an integral part of the defense team.

-- This article was featured in PI Magazine, October 2010 edition --

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