Pre-Trial Investigations

Why Investigate?

Competent advice requires that an attorney conduct independent legal and factual investigations sufficient to enable him to have a firm command of the case and the relationship between the facts and each element of the offense.  Strickland v. Washington, 466 U.S. 668, 691, (1984), Ex Parte Briggs, 187 S.W.3d. 458, 467 (Tex.Crim.App. 2005).

Linear or Theory Based Investigation

It is clear our mandate is to be zealous advocates for our clients.  Further, our role within the framework of the criminal justice system requires us to conduct competent and thorough investigations. But your investigation ought to have a goal or a point.

The whole point of investigating is not merely to retrace the State’s steps or affirm our own client’s guilt.  The point is to test alternate theories and see which, if any of them, are viable defenses.  Often thorough investigations as to alternate theories may only confirm the State’s theory of the case.  In this event it assists you still in allowing your client to make an informed decision.

Investigations can either be 360 degree and all-encompassing or linear calculated to prove a single point or theory.  When the state proves up a shoplifting case, for instance, the investigation is usually linear – that is they merely check the box for each element toward the one viable theory.  Murder or sexual assault, by contrast ought to be more comprehensive, thorough, or ‘rounded’ and thus are a “360 degree” investigation.

In a perfect world, we ought to do a 360 investigation as defense lawyers.  In reality our resources and other constraints make linear investigations towards alternate theories more practical. Don’t investigate for the sake of investigating. Develop a theory or theories and hone your investigation.

Developing Your Theory

The Jury Charge

Your theory of the case begins with the jury charge.  It ought to go without saying but you need to be able to make a straight faced argument for acquittal based on the law and the evidence. The Texas Pattern Jury Charges are sold by the Texas State Bar and are an excellent resource. Always consider applicable defenses.

Interview Your Client First

Always interview your client to get their story. The real world is often stranger than fiction and interviewing your client first tells you where to look in your investigation. Your client doesn’t know the elements of the offense nor are they typically aware of the law on defenses. Even if your client provides you nothing but a detailed confession – it can still provide you with insight into what, if any, avenues for investigation remain or were unchecked by the State that remail plausible alternate theories.  Keep an eye on mitigation as well and be sure to lay the groundwork for character witnesses, mental health mitigation, or other mitigatory angles.

Review the Discovery

Based on your jury charge and your client’s interview hopefully you’ve been able to identify some avenues of attack.  Does the written discovery or the media provided in the case eliminate your potential theories? What, if any, defensive theories remain?

The Fire Hose of Resources

Sources you can use are seemingly endless. Here are as many of them as I can think of or have seen cited in other similar papers:

Internet and web pages

General Reference

Public Records

Other online resources:

  • TCDLA’s web page – the greatest compilation of resources on the planet: www.tcdla.com;
  • Texas District & County Attorney’s Association: www.tdcaa.com;

Paid web pages:

Pursuing Your Theory

Now that you’ve narrowed your case down to hopefully a few defensive theories it’s time to investigate your theories and find evidence which corroborates it. 

Investigative Techniques

Experts

Many defensive theories will hinge on something highly technical or complex to the degree it might require an expert to assist in resolving the issue.  Examples might include computer forensics, toxicology, psychology, or DNA.

Experts can be invaluable in guiding your investigation and pointing you to resources which can help them help you.  It’s also important to bring an expert on as early as possible because they can also talk you out of bad theories before you’ve wasted too many resources on them.

Indigent defendants are legally entitled to funding for expert witnesses!  Not having money is not an excuse not to get expert assistance. Even on cases where you might be retained – your client can still attempt to make a showing of indigency. See Tex. Code Crim. Proc. Art. 26.05(d) and  Ake v. Oklahoma, 470 U.S. 68 (1985). Attached are model motions for appointments of experts. Those pleadings are ex parte – because the State is not entitled to see what defenses, if any, you’re contemplating.

Investigators

Indigent defendants are also legally entitled to funding for investigators in addition to experts.

An investigator can be crucial for the reasons they can go into the field just like law enforcement. Reluctant or hostile witnesses will often not return phone calls or emails – but may very well give detailed statements to someone who knocks on their door.  It’s important to give your investigator guidance as to your theory so they know what they’re looking for. Interviewing witnesses and not asking them critical questions can be frustrating.

At a minimum your investigator should always attempt to interview the complaining witness even if it seems a fool’s errand. Sending an investigator into the field to interview a child witness may often seem daunting but a practice tip is to always make sure your investigator respects the child’s parent or guardian and asks for permission or for the parent/ guardian to be present during the interview.

Documents

Documents and other public records can be invaluable as well.  Documents can be attained a number of different ways depending on their nature and who has them. Public records such as court documents and death certificates can be easy to find. Some records can be subject to strict privacy controls such as hospital records or CPS records. Below I will discuss how to attain some of those.  Public documents can be imputed to the State’s possession and practitioners can try and get the State to attain and produce them under Tex.Code.Crim.Proc.Art. 39.14.

Here’s a quick list of possible documents or records which may be attainable:

  • Employment records
  • Offense reports of other relevant cases
  • Medical records
  • Probation records
  • Social security
  • IRS records
  • Property records
  • Appraisal records
  • Court documents and files
  • CPS records
  • Attorney General records
  • Prison Records (TDCJ)
  • County Jails
  • Police officer records (TCOLE)
  • Military records
  • Medical examiner or autopsy reports
  • Social media

Subpoenas

Compulsory process – or the ability to use the court’s authority to attain evidence for your defense – is a valuable tool or weapon which can often be over-looked. Counsel has the ability to subpoena records such as cellular data or actual physical items such as cell phones or other property.  Subpoenas and compulsory process are governed by Tex.Code.Crim.Proc.Art. 24.02.

The Bottom Line

Can a zealous and effective investigation into alternate theories put our clients on the same ground as the State of Texas and equalize their vast advantage in resources? If done diligently, strategically and with surgical precision – then yes. But remember your investigation may be the only chance they’ve got to a truly level battlefield as the framers of the Constitution envisioned.

TCDLA
TCDLA
Jeremy Rosenthal
Jeremy Rosenthal
Jeremy Rosenthal is a senior partner at Rosenthal, Kalabus & Therrian, the largest criminal defense law firm in Collin County. Jeremy has tried over 250 cases and is a former Prosecutor in Collin County. He is the past president of the McKinney Bar Association, is a Board Member for TCDLA where he also serves as Co-Chairman of the Technology Committee. He was graduated from SMU School of Law in 2000 and earned his undergraduate degree from Texas Tech in 1997. He can be reached at and (214) 724-7065.

Jeremy Rosenthal is a senior partner at Rosenthal, Kalabus & Therrian, the largest criminal defense law firm in Collin County. Jeremy has tried over 250 cases and is a former Prosecutor in Collin County. He is the past president of the McKinney Bar Association, is a Board Member for TCDLA where he also serves as Co-Chairman of the Technology Committee. He was graduated from SMU School of Law in 2000 and earned his undergraduate degree from Texas Tech in 1997. He can be reached at and (214) 724-7065.

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