It is the legal investigator's task to be fact finders from scene to courtroom. A formal investigative protocol will both enhance and ensure the investigative process.
The Investigative Protocol I have developed is: Prepare, Inquire, Analyze, Document, and Report.
Following this protocol will expose any weaknesses in the opponent's case and enhance your case.
The Prepare stage is the foundation of the investigative process, and applies to every investigation.
Lack of preparation will simply inhibit the smooth, accurate and efficient investigative process. The result will be an investigation that has been merely conducted, but not completed, more of an inquiry versus an investigation.
Critical to this review are the evidentiary discovery and disclosure, elements of criminal charges and civil allegations, any applicable rules and regulations, policies and procedures, and incident scene or event data.
This is too often the most overlooked component of the investigative process, however, it is as important as each of the complimentary components. Lack of preparation is much like attempting to reach a destination without any research, map or directions; or build a house without plans and inspections. Preparation includes the proper skills, knowledge and equipment, to working through the evidentiary discovery and disclosure processes. This includes comparing the records to the written reports, recordings to transcripts, comparing the scene to incident diagrams and photographs, comparing victim and witness statements to their interviews and the written reports, and any other manner of evidence with the corresponding records and reports. Be aware of missing and conflicting information, and confirm all provided and determined information throughout the investigative process.
Proper development of the case specific strategy is key to the fact-finding investigation. This strategy includes considerations of both the investigative and legal needs. As an example, classes of sexual assault cases or classes of motor vehicle personal injury cases may generally have the same elements in criminal or tort cases. However, within the respective charges and allegations, the details and circumstantial information will be different. All incidents, ultimately requiring an investigator, have likely been previously reported and/or investigated in some manner. It may have been reported to a supervisor, parent, law enforcement agency, or government oversight agency.
However, not all incidents are investigated, and an investigation conducted is not necessarily an investigation completed. Knowing how incidents are reported, determining if an investigation was conducted, and the parameters of that investigation, are all key components to the basic preparation process. Finally, finding additional witnesses, reports, photographs, and experts are the building blocks in the preparation foundation of a skilled investigative strategy. These develop the facts that will become evidence.
Preparation is essential to the completion of this investigative process, as is having all of the essential tools - mental, physical, and equipment preparedness. Well thought out research preparation and planning will make efficient use of the available time, funding, and resources. This preparation will be reflected in the quality of the investigation, the investigative report, and presentation to the attorney-client, opposing counsel, and the trier-of-fact.
The Inquire stage of the investigative process is often seen as the actual investigative process. Unfortunately, this is where many investigators - private sector, government law enforcement, and insurance companies - start the process. Similarly, many clients, from attorneys to Special Investigative Units (SIUs), feel the investigative process consists of only making inquiries and reporting. Incomplete and ineffective investigations are often the result of skipping important steps. It is often thought: why continue the investigative process when witnesses have completed written statements and such statements are considered factual; personnel have documented the scene and evidence; victims have related their own personal accounts; and persons of interest have been determined? Investigations are often only follow-up inquiries to the provided disclosures and discovery. This results in an inquiry and report that outlines only an informational basis and essentially relies only on the opponents case, particularly without uncovering any relevant information or evidence. This may be considered conducting an investigation, but it is not, it is only an inquiry.
In an effort to save time and expenses, often the client will not authorize complete scene and background investigations or personal contact with victims, witnesses, and other pertinent persons, using only a telephone or other limiting tasks and means of investigation and communication. The legal investigator is called upon to conduct and complete an investigation for their attorney-client, and often parallel investigations of the opposition. This parallel investigation is the review, and possibly re-investigation, of the opposing party's investigation and all components within. An improperly conducted investigation, which may result in a bad prosecution or trial outcome, has three typical investigative results: incomplete investigations, failure to follow procedures, and protocols, and false information.
All investigators have a point at which they begin an investigation, and there is always a point at which the investigation will end. From law enforcement to insurance adjusters, findings are reported when the threshold of the imposed requirement, statutory or policy, has been met. Two specific examples come to mind: The probable cause and the preponderance of evidence; the former is criminal and particular to law enforcement and the latter is civil and particular to industries that need only establish liability for claim purposes, such as the insurance industry. Consider this: when was the last time that the investigator read, saw, heard, or researched a case in which any corporate or government investigator continued an investigation past the point of probable cause or determination of responsibility? Probable cause is criminal and is defined as "...a reasonable ground in fact or circumstance for a belief in the existence of certain cirucmstances." Preponderance of evidence is civil and is defined as "...evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not." Generally, unless these cases are further litigated, nothing more is or needs to be done. The information, as reported, remains undisputed and the investigation, as conducted (possibly not completed) also remains unquestioned. It is important to determine through investigation the strengths and weaknesses of the case, which is only as strong as its weakest link (fact, evidence, procedure).
The Analyze stage consists of a series of important organizational and planning steps. It is here that the investigation and case gains traction. It consists of an in-depth and critical review of the information to determine the factual evidence from all sources and methods. It is both a subjective and objective reasoning exercise throughout each assignment of the investigative process. Ultimately it will be determined what is factual, possible or plausible, and what is partially to wholly fiction. It begins to define the road map to the truth based upon the factual evidence.
Two areas of investigative findings are predominantly analyzed: provided information and information developed in the investigative process. The legal investigator's training, education and experience, as well as expert consultation, are important in the factual analysis. Two important skills of the legal investigator are to be inquisitive and analytical; although independent, they work complementary to each other.
Analysis involves a complete assessment and comparison of the information; determination of any missing, conflicting, supporting, and damaging information; analysis of the strengths and weaknesses of the information, facts, and evidence; additional analysis of the strengths and weaknesses of the witnesses, parties of the case and other involved persons; analysis of the strengths and weaknesses of the investigative process to date; and a complete analysis of the case progress to determine any new, continued, or different course of action to recommend or consider. During the case analysis the legal investigator is implementing an important check and balance to ensure that no evidence is being forced upon a theory, or that no theory is imposed upon the evidence.
This is not the reporting of the case, we'll get to that. This is the organization of the documents, reports, evidence, and all other things demonstrative and supportive of the investigative process and final report. This is the time to review and document the factual information and evidence gleaned from evidentiary discovery and disclosures, attorney-client and client, and the legal investigator's work product. The documentation covers three important areas of information, evidence, and procedures: existing and excluded, cross-referenced with the investigative components, and to maintain evidence protocols. Common items to be documented include any evidence logs, photography and video logs, diagrams and details, witnesses and contact information, time lines, and any other data that should be documented, logged and charted for easy reference, as well as a matter of evidentiary and reporting protocol. The importance of this documentation can be seen in any one of several stages of the litigation: nearing deposition and motions, possible plea or settlement, negotiation or disposition, or trial.
As the legal strategy becomes more focused based, in part due to the legal-investigative findings, it will be necessary to have quick access to the analyzed data. For the legal investigator, common methods of documentation include: within the investigative report, attached exhibit or separate documentation, or both. Understanding and developing the necessary protocols and procedures is another check and balance of assuring that all investigative personnel - law enforcement, government, commercial, and private sector - have all adhered to the best professional practices and accepted standards. In addition, developing and following a documentation protocol will provide a strong indication of any missing or incomplete components of the investigative process.
The documentation consists of facts, evidence and information that support the investigative process and findings. Most of the documentation tasks have been completed concurrently in the Prepare, Inquire, and Analyze stages. As information comes in and is generated, it is logged with associated cross-references noted. If it is not supported it cannot be reported; and, if it is not reported, it is not evidence.
The investigative report is the legal investigator's presentation of the assignment or case to date. It is their evidence, just as the evidentiary discovery and disclosure is the evidence of the prosecution and opposing party. It is the legal investigator's skills and knowledge, findings and analysis, documentation and further recommendations all presented in a consistent and smoothly flowing document. The investigative report is not just a presentation to the attorney-client, but a presentation to their client, possibly opposing counsel and the trier-of-fact. It also reflects the investigative work and abilities, a compendium of all the components of the legal investigator's investigation. Moreover, it is about the case that the attorney-client is working diligently to best represent and advocate for their client. If it is not in the investigative report to the attorney-client (written or verbal), it is not evidence; and if it is not evidence, it is essentially non-existent and of no benefit to the case.
Report generation, and details provided within the investigative report, will depend upon the client and the case being investigated. It should always be considered that the investigative report will make it to the opposing party, judge, or jury. The key is to be prepared as the investigative report, representing investigative skills and knowledge, and complete case analysis, has the potential to be read and scrutinized by many others. The investigative report will be scrutinized in the same manner as the opposing party's work product in the course of the legal investigator's own factual inquiries.
The investigative report should consist of several components including the investigative process and findings, evidence review and analysis, evidence presented - such as interview recordings - and summaries of the interviews. Also detailed will be a complete assessment of the investigation to date, including positive and negative determinations. As with the investigative process, all reports should provide the who, what, when, why, where, and how of the investigation, facts, evidence and information. The investigative report should be as concise and brief as possible. There is no need to include in a report what is included in an attached exhibit - such as a log, timeline, or similar form of documentation. The final consideration for all reports is that they be consistent in style and form, as well as final delivery to the client.
Consider that the investigative report is similar to a trial, the opening argument (Case Initiation), evidentiary stage, and the closing argument (Summary). The first section is the investigative report introduction (Prepare stage); followed by the body of the investigative report, often a narrative (Prepare, Inquire, and Analyze stages); and the conclusion of the investigative report (Analyze and Document stages). The introduction consists of topics that provide the foundation for the investigative report and will make the reader familiar with the litigation, investigative process and contents of the investigative report. The conclusion of the investigative report consists of major components providing both a look into the future of the investigative assignments, and also the final summary of the investigative report.
Another comparison would be to think of each report as being similar to the written agenda for business meetings. Agendas are divided into categories, or report headings: open and closed items, or case assignments and progress; old business and new business, or case status and recommendations; and review of actions, or report summary. Using a consistent and informative style provides the attorney-client with the benefit of knowing what to expect in the investigative report, easily reviewing the pertinent information, and considering both the status of the case and recommendations.
Reports may be generated at regular intervals by days, weeks, or months; as assignments are completed; or after the investigation is completed. It should be up to the attorney-client, as well as including the legal investigator's experience on how the investigative process will unfold and the most efficient and effective reporting intervals. Case status, or interim reports, are common if the investigation is ongoing, and a full or supplemental report is unwarranted at that time.
Although there is nothing individually unique about the various processes described in this article, it is a protocol that consistently accounts for each component and need for the investigative process. In the investigative process, we must know where we have been to get where we are going; all legal investigations are that way. Legal investigation in both civil and criminal assignments is simply a progression of fact finding from one task or assignment to the next. The investigation should flow naturally, but be flexible based upon the needs of the case, progress of the case, and developed information.
Working with the attorney-client brings together all the skills and experience of the two professionals or teams, into one cohesive and representative strategy in the best interests of the litigation or criminal defense client. We are fact finders - for better or worse for the client. There is a duty to present a complete picture that is unbiased and with no influence or opinions.
It is through the use of skills, knowledge, and professional experiences that no stone is left unturned in all aspects of the case.
Dean A. Beers, CLI, Forensic Investigators of Colorado, LLC, LaPorte, Colorado, 970.691.0813.
Adapted from "Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases," CRC Press, February 2011.
Dean has been a legal investigator since 1987 and operates his agency with his wife, Karen. He has written and presented extensively on various investigative topics, including consulting and testifying as an expert on investigative protocols, forensic investigations and pattern injury analysis.
In addition to his NALI membership and CLI committee, he is the chairman of the Professional Private Investigators of Colorado, member of the National Council of Investigation and Security Services, World Association of Detectives, National Association of Medical Examiners, and International Association for Identification.