Your Colorado Criminal Defense Lawyer Must Conduct A Thorough Investigation Of Your Case To Properly Defend You
Your Colorado Criminal Defense Lawyer Must Conduct A Thorough Investigation Of Your Case To Properly Defend You – A thorough investigation must be done by the Defense in any Colorado criminal case. This article addresses – as succinctly as possible – the mechanism and issues surrounding an excellent criminal defense investigation.
First – Some Basic Thoughts About Colorado Criminal Case Defense Investigations
An thorough criminal defense investigation is about asking the right questions and checking and rechecking the work of law enforcement and the District Attorney’s office in any given case.
What is a “good” criminal defense investigation?
What are the major goals of a criminal investigation?
Who arrived at a crime scene first and how qualified were they to conduct the critical missions required at that time?
What should have been done at the scene initially?
Was the crime scene and the potential defense based (exculpatory) evidence protected?
What was done and not done at the preliminary investigation?
Were res gestae statements preserved? (see below)
What Is A Defense Based Criminal Investigation?
A Defense Based criminal investigation is a step-by-step analysis and careful examination of the State’s investigative work in a given case. The word investigation is derived from the Latin word vestigare, meaning to track or trace, so a defense based criminal investigation means a careful painstaking review of the State’s “process” of:
…discovering, collecting, preparing, identifying and presenting evidence to determine what happened and who is responsible.
A defense based criminal investigation is a reconstructive process that uses deductive reasoning to review all of the evidence – or lack of evidence in a criminal case.
Analysis here is critical – the more evidence the State accumulates against the accused during a criminal investigation – the stronger the proof of guilt. Law enforcement is not concerned with making a case for the defense of the accused. A defense based criminal investigation – as opposed to a prosecution based investigation – takes on a very different goal – the goal of proving not only the weaknesses in the State’s case – but establishing the innocence of the Defendant using the same or additional evidence “missed” by the police.
The Defense investigation is focused on evidence establishing innocence.
Understanding The Science of “Criminalistics”
The recording, identifying and interpreting of the minutiae (minute details) of all physical evidence in a given Colorado criminal case is called the science of criminalistics. The criminalist searches for, collects and preserves physical evidence in investigations of crime and suspected criminals.
Forensic science – is a field of study that applyies scientific processes to solve legal problems and includes the subcategories of pathology, entomology, odontology, anthropology, photography, serology, toxicology, DNA analysis etc. Interest in forensics has burgeoned over the last 10 to 15 years leading to the “CSI Effect” in criminal trials.
The “CSI Effect” – What A Jury Expects To Hear
Because of the massive introduction on television and other media of the world of the “crime scene investigator” (CSI) – juries expect any criminal investigation to be a thorough – specialized – scientific collection and processing of evidence.
CSI investigations almost never occur in the world of Colorado criminal investigations.
This works to the advantage of the defense case. Jury verdicts, rightly or wrongly, are driven by juries who many times know a great deal about forensic science. Juries today will search for the kind of thorough and meticulous investigation they have come to expect before destroying a person’s life.
Juries expect scientific evidence in every case, and the “CSI effect” has increased their awareness of what was done and what was not done – whether such an investigation was not done for budget reasons – or for reasons related to just pure laziness.
Today jurors are asking intelligent questions and challenging assumptions that the prosecutor – just 20 years ago – expected them to accept without another word.
A juries’ verdict should be just and not just “expedient”.
Was A Crime Committed?
The very first question in any criminal defense investigation is the most fundament question of all – was a crime committed? Is there a crime in the criminal code whose elements have been fully fleshed out by the evidence arising out of the investigation?
If a crime has been committed – was the identification of the evidence in support of the commission of that crime systematically located and the RIGHT individual identified by the sufficient evidence to prove in court that the suspect is guilty beyond a reasonable doubt?
The Sometimes “Nearsightedness” Of A Police Investigation
The goal of any police investigation should be – but is rarely – seeking the truth of what happened – and not just closing the case and obtaining a conviction. Why did an event happen? When? How? And Who is culpable?
To discover the truth in any criminal investigation – to identify the correct suspect – the responsible person – the use of LOGIC is indispensable. Logic requires asking ALL of the possible cause-and-effect questions – asking whether ALL of the evidence was found and was that evidence thoroughly reviewed and explored searching for every alternative explanation?
The goal of a defense based investigation is to view the known (facts) and the known and probable inferences from those facts and search for alternative inferences and alternative explanations other than the accused is responsible.
A fact is an action, an event, a circumstance or an actual thing done. On the other hand an inference is a process of reasoning by which a theory or conclusion may be deduced – – – the process is called “deductive reasoning.”
Cases go awry – when the police fail to use reasonable inferences from the facts and therefore come to the WRONG CONCLUSIONS of exactly who is responsible for a crime.
My Experience As A Colorado Criminal Defense Lawyer – The Dangers Of Preconceived Ideas And Lack Of Objectivity – Myopic Investigations
It has been my life experience to find that certain investigators have a tendency to become sold on a suspect or theory TOO EARLY in a criminal investigation. This mind set creates a kind of “investigative myopia” (deductive short sightedness) which can actually foster a subconscious shaping of evidence – or the interpretation of the evidence or lack of evidence – to support a preconceived or premature theory of the case.
This myopia results in the loss of “investigation objectivity” which is critical to every criminal investigation. Rather than seeking the truth – the myopic investigation seeks only proof of the suspect’s guilt. When there is “enough” evidence to satisfy the District Attorney – the case is closed and charges filed.
Scrutinizing The Investigation – The Preliminary Investigation
The remainder of this article will address how the Colorado Criminal Defense Lawyer scrutinizes the thoroughness or lack of thoroughness of a criminal investigation. This involves ALWAYS ASKING THE RIGHT QUESTIONS.
Asking the same kinds of piercing questions again and again – challenging assumptions made by law enforcement – and challenging the inferences law enforcement make from evidence located or missing – seized or recorded – is .. well .. nothing short of critical to this process.
The process here is the process of proving a client’s innocence – or – at a minimum – pointing out the weaknesses or lack of consistency in the State’s case. The goal here is strong find one or more “reasonable doubts” that a jury will find at the trial of the matter.
The First Responders To An Alleged Crime Scene In Colorado
The first law enforcement officer at the scene of an alleged criminal – usually after being contacted by dispatch – is the street level patrol officer. He or she is the called the “primary” at the scene and is the person in charge of the scene before others arrive. Every police department has specific policies and procedures as to the duties and responsibilities of that officer. The Colorado criminal defense lawyer will need to discover those policies.
This “initial response” is the most important to the success – or the failure of the investigation.
Experienced Colorado criminal defense lawyers will tell you that more cases are won or lost as a result of what was – or was not done in the first few hours at the crime scene.
Criminal cases are “made” – that is solved when the “investigators” at every level of the case carefully and methodically develop leads.
When the first officers arrive at the “scene of the crime” there is often chaos. On the other hand the scene may be precisely the opposite – completely deserted. The decisions made from the moment of arrival – perhaps even the decisions made before arrival at the scene – for example who will arrive first and what they will do – all impact the quality of the result.
Regardless of the situation, the officers must take charge immediately and form a plan for proceeding based on the information they have at hand, which might not be much.
What The First Responders See – What They Do
The trauma to the people found at a crime scene can be substantial. These are the witnesses and they may be incoherent, apprehensive or just plain confused. At arrival – there is – then and there if handled properly before individuals “get their stories straight” the greatest possibility of solving a criminal case. On the other hand – this moment in time, as compared to all other stages of a criminal case, can be the most dangerous to justice as many LEADS are lost because of a failure to take appropriate action.
While witnesses, “eyewitnesses” or otherwise can be the key to solving crimes – this is almost always the most unreliable evidence. Research has demonstrated that while eyewitness accounts can provide leads as many as 75 percent of the Defendants convicted solely on eyewitness testimony are eventually exonerated through the use of DNA evidence. Physical evidence then – if it exists and can be located, is critically important at this point to a just result.
Some Questions To Ask First Responders
1. Did they observe anyone leaving the scene?
2. If they did see a person or persons leaving the scene – did they note their descriptions or a description of the vehicle they were using?
3. Was there an in-squad car video or a digital recorder used – why or why not?
4. On the way to the scene – was there a plan of action for the kind of crime they expected to find – what was it – or why not?
5. How fast was the response? (The amount of evidence lost may be dependent on the speed of the first response).
6. Did medical help arrive – were they left alone with the allged victim – were they properly instructed on how to reduce the risk of contaminating the scene and losing evidence.
7. Were the police officers present and arriving given specific and assigned responsibilities immediately? (Often cops are the worst offenders at contaminating the scene). Just as important –
Was there direct and personal communication between uniformed patrol and investigative personnel as to what was done and not done.
8. Was the scene preserved? Evidence seized properly? Were all witnesses properly identified interviewed thoroughly and using what methods?
9. Were the citizens present properly instructed on how to minimize scene contamination?
10. Was the scene properly roped off, barricaded and guarded?
11. Was the scene properly recorded BEFORE evidence was moved or tampered with in any way?
12. If weather was a factor – was the evidence impacted by the weather covered and otherwise protected before it could be properly examined, documented and preserved? (Outdoor crime scenes are immensely impacted by conditions such as heat, wind, rain, snow or sleet.
Locard’s Principle Of Exchange
“Every contact leaves a trace” is how the Locard Exchange Principle
It has been written as follows:
Wherever he steps, whatever he touches, whatever he leaves, even unconsciously, will serve as a silent witness against him. Not only his fingerprints or his footprints, but his hair, the fibers from his clothes, the glass he breaks, the tool mark he leaves, the paint he scratches, the blood or semen he deposits or collects. All of these and more, bear mute witness against him. This is evidence that does not forget. It is not confused by the excitement of the moment. It is not absent because human witnesses are. It is factual evidence. Physical evidence cannot be wrong, it cannot perjure itself, it cannot be wholly absent. Only human failure to find it, study and understand it, can diminish its value.
The reason the crime scene must be secured carefully is the potential loss of evidence based on this basic forensic theory. Only law enforcement DIRECTLY INVOLVED should have access to the crime scene – and that “buffer area” needs to be scrupulously maintained. This means no media, no public, and no unnecessary police.
The Collection Of Res Gestae Statements
Res gestae statements (res gestae means “things done”) are defined as spontaneous statements made at or near the time of a crime which concern or closely relate to the crime. Unlike planned statements – taken later in the process – res gestae statements are often much more truthful than the later, planned responses.
The police are taught at the academy (for many years – taught by former DA’s like me) that information in the form of statements – volunteered by victims, witnesses or suspects at or very near to the time of the criminal actions can be priceless evidence.
Res gestae statements -while falling under the rule of evidence that typically would exclude them the hearsay rule – are allowed into evidence as an exception because they are more reliable than planned statements in that res gestae statements are under are made usually very closely related to facts and are therefore admissible in court.
These “res gestae” statements should be recorded in the police officer’s field notes. If they were not – find out WHY NOT. If they were – they are an endless source of effective cross examination.
A Criminal Investigation Is Never Over – The Follow-up Investigation
A criminal investigation should never end when a shift ends. Preliminary investigations are just that – preliminary and rarely yield enough information to either side of a case.
Enter the need for the “follow-up investigation“.
Preliminary investigations are often abbreviated because of weather, uncooperative witnesses, and such things as the need to chase down leads that cannot be fully flushed out in the early hours of the initial investigation. Many circumstances at the preliminary investigation stage are beyond the officers’ control and require follow up. The absence of that follow up is often the crux of the defense case.
A defense based investigation assume that there is new information or evidence that can only come to light at a later time. Follow up – in the forms of such things as the proper processing of evidence seized by CSI, the evaluation of evidence by experts in the field of forensics is essential to finding the truth.
The follow-up phase is intended to build on the preliminary investigation and can be conducted by the officers who responded to the original call. Follow up investigations by more experienced detectives, agents and or investigators, take over the next day. The goal of the Colorado criminal defense lawyer is to make certain that law enforcement includes uncovering in their investigations ALL of the evidence – the evidence that convicts and the evidence that acquits.
“Leaving out exculpatory evidence may lead to liability for false arrest, malicious prosecution and illegal search and seizure claims.”
There are many excellent articles on crime scene contamination on the net. See http://www.crime-scene-investigator.net/evidenc1.htm and
Your Colorado Criminal Defense Lawyer Must Conduct A Thorough Investigation Of Your Case To Properly Defend You
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“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Your Colorado Criminal Defense Lawyer Must Conduct A Thorough Investigation Of Your Case To Properly Defend You.