Illinois Association of Criminal Defense Lawyers

Vol 1 No. 2

Ask Mort…
Mort Smith

Attorney’s Question:
I just contacted an investigator to assist me with a criminal case. What do I do first? And
what information/materials should I share with the investigator?

There are many different types of criminal cases in which investigators become involved.
Criminal cases range from misdemeanors where the punishment is a fine or minimal jail
time, to capital murder cases where your client faces the ultimate punishment. Before
hiring an investigator you should determine if he/she specializes in criminal cases; or at
the very least, has experience as a criminal defense investigator. Like any other
profession, the investigative field is gradually becoming more specialized, eliminating the
jack of all trades type investigator of the past. Areas of specialization include spousal
investigations, surveillance, missing persons, civil, criminal, workmen’s compensation,
internal/undercover, pre-employment back ground investigations, to name a few.
Once you have determined that this is the investigator you wish to hire, you should
schedule two meetings with him/her before they hit the streets.

First Meeting
The first meeting is when you tell your investigator what crime your client is charged
with, his/her background, a synopsis of your client’s version, a synopsis of the
prosecutions version and your initial thoughts on the case. For an investigator to be
effective in his/her role you, as the attorney, should feel comfortable enough to share this
information and as much of the file as necessary.

Get the money out of the way.

Nothing affects the attorney/investigator relationship more than money. Negative
outcomes in cases typically stem from misunderstandings and fights surrounding money.
If a person is not getting paid or not getting paid in a timely fashion, their energy level
and creativity diminishes and the case suffers. This is the time to clear up issues
concerning the financing of the investigation. If your investigator is a public
investigator1 then there is no issue concerning fees. However, if your investigator is a
private detective and survives by his/her account receivables, and you are financing the
investigation, then you definitely want be certain that you and your investigator have a
clear understanding about fees. If the investigator is appointed be sure discuss with your
investigator the judge’s expectations. Some judges place limits on the amount of funds
that will be allocated for the investigation. Others judges, although they do not place
limits on the amount of money, ask for periodic updates (usually monthly invoices) so
they can monitor the cost of the investigative portion of the case. The discussion between

1
Public Defender investigator, Federal Defender investigator, State Appellate Defender investigator, etc.
are usually salaried thereby eliminating the need to discuss fees.
you and your investigator about fees and a fee schedule should not end with any grey
areas. Be clear and get the money out of the way!

Materials and Information

Make your file available so the investigator can go through and tab what he/she would
need for the investigation. In any criminal case, misdemeanor or felony, even if your
investigator has not requested, them I suggest that you give your investigator a full copy
of the police reports. This includes, but is not limited to Arrest Reports, Investigative
Reports, Supplemental Reports, Incident Reports, General Progress Reports, hand written
notes (sometimes called field notes), signed statements, etc. This gives your investigator
an idea of the information the prosecution has about your client and the case. The
investigator now has data that is helpful in developing an investigative plan. The
investigative plan is the proposed method on how the defense investigation will proceed.
It includes but is not limited to a list of known witnesses and their roles, the order in
which the witnesses will be approached and a list of other pieces of evidence to be
considered and later explored. The investigative plan is subject to change of course
during the investigation depending upon what the investigation and/or the attorney learns
during the case. The above material gives your investigator an idea of the facts of the
case including specific dates, times, locations, and other bits of information that could
prove helpful in designing the investigative plan.

Transcripts of testimony (grand jury, preliminary hearings, court reported statements,

taped statements, etc) by prosecution witnesses should be provided to the investigator.
Just because a prosecution witness testifies about certain facts does not necessarily mean
they are telling the truth or the whole truth. It does mean, however, that in most
instances, they are stuck with that testimony should your investigation yield a
contradictory set of facts relative to the testimony.

The Second meeting

After your investigator has had an opportunity to review his/her copy of the file and all
the information you provided, you should meet and discuss case theory and the
investigative plan. Although you may not wish to accompany your investigator during
every interview, you should at least want to know who the investigator will be
interviewing and what they hope to gain from those interviews. Ask your investigator for
their ideas and share your ideas with your investigator. Feel free to exchange a verbal
checklist of what you think should be explored and compare it to your investigators list.
This is the brainstorming session after which you should feel comfortable that your
investigator knows the file well enough to hit the streets.

Also, during the second meeting, be sure to tell the investigator your policy on
investigative updates. Some attorneys prefer written updates, others prefer verbal.
Discuss your policy on statements and notes and other discoverable material. If your
investigator is a private detective who will be submitting periodic invoices, I suggest you
discuss how you want information presented in the invoices2. Communication between
attorney and investigator is critical and should be open and continuous throughout the
case. Impress upon you investigator the importance of your knowing what is going on
with the investigation and be ready to share with your investigator any new developments
you learn about in the case3. Impress upon your investigator to tell you everything he or
she learns during the investigation good or bad. You need to know and you client needs
to be made aware of the direction the case is going. Knowing fully what information is
out there that could negatively affect your case could help you determine whether or not
to redirect the case from a firm stance to go to trial to packaging it up for a plea.

It has become crystal clear over the past couple of years how important teamwork is in
defending your client’s constitutional rights to a proper defense. I have lost count of the
national number of innocent men and women who have, not only been released from
prison and/or death row because their defense team proved their innocence, but the
number of innocent defendants who have avoided wrongful conviction because of the
dedicated, coordinated, fearless and tireless work of their defense teams.

Well, ciao 4 now.

Mort Smith, M.A. is an Illinois Licensed Private Detective who specializes in criminal defense
investigations. He is also the Associate Director of the Defense Investigator Certification Program, Center
for Justice in Capital Cases at the DePaul University College of Law. Mort can be reached at 708/612-
9722 or mortsmith@aol.com

2
It is not unusual for opposing counsel to request or subpoena an investigators invoices. They do this not
because they are nosey and want to see how much money the investigator is making, but to determine who
the investigator has been visiting as well as other investigative activity.
3
Any new discovery, court dates, conference dates, etc.