Effective Use of A Private Investigator

Attorneys have a duty to represent their clients in the best possible way, including finding all of the facts of the case. In criminal cases, if the attorney does not find and present all of the facts, it could be professional misconduct, causing ineffectiveness of counsel allegations, a new trial, and possibly, disciplinary sanctions. Therefore, for the most effective and cost efficient investigation, a private investigator should be used to thoroughly investigate the facts.

The facts can make or break a case, and law schools rarely teach students much about investigating cases. The right investigator – one who is reliable, resourceful and knowledgeable – can help an attorney develop facts, secure evidence, and perform countless other tasks to make an attorney’s life easier. Conversely, the wrong investigator can antagonize witnesses, embarrass you in front of your client, provide you with bad information, waste your money, and raise your malpractice premium. Even more important, private investigators have that most precious commodity (one that lawyers often lack) the time – day or night – to get the job done.

Be as wary of choosing a private investigator from the telephone book as you would be choosing a doctor that way. It is much better to get a referral from a colleague or to contact organizations such as Pennsylvania Association of Licensed Investigators of, if looking nationally, an organization known as Intelnet. These organizations can easily give references and its members have codes of ethics and procedures which must be abided.

An attorney should review the educational and professional background of the investigator. Additionally, the investigator’s past should have no serious blemishes. A good private investigator should have expertise in the following areas:

  • Interviewing techniques
  • Serving as a fact or expert witness
  • Statement taking
  • Utilizing sophisticated databases
  • Having government contacts
  • Handling of evidence, both physical and documentary
  • Dealing with reluctant or adverse witnesses
  • Access to other experts in various forensic disciplines
  • Knowledge of other private investigators in other geographic locations for subpoena and other services

Caution must be taken by attorneys to make certain the investigator he or she is using has the experience in the criminal field. Some investigators know only how to conduct surveillance or work a civil insurance fraud case. Some have no experience or desire to handle criminal cases, as do some have no idea what an attorney expects as a defense investigator. In some cases, a former police office may look at the case in a professional manner, and would not be helpful to an attorney; while often it is good to have a person like that review the police case. Also, having a former law enforcement officer review a search warrant or an affidavit of probable cause can be very helpful.  

Quite apart from greater skill, resources and time, there is another reason to use an investigator to get the facts. Suppose you, the attorney, have interviewed a critical witness, and have his story down cold. But, seven days into the trial, he takes the witness stand and begins to change his story. Who is going to impeach him with his prior inconsistent statement? Is the judge going to have to have to declare a mistrial? Will the client be found guilty? An attorney whose testimony is necessary in a case is usually disqualified from participating – except as a witness – in the trial.

  • It is so important to take the time to interview the private investigator who you are considering to hire. Questions that an attorney should post to the investigator are:
  • Is the investigator knowledgeable in the law? If he is, this will give him a better understanding of what information will be admissible in court.
  • Does he understand the parameters of the case? This will ensure that he is less likely to run up a bill going after information that is useless.
  • Does the investigator understand ethical consideration such as attorney-client privilege?  If he does, this will prevent defense theory or evidence on the case from being told to a witness, who then reports it to the District Attorney.
  • Does he feel comfortable in working in all types of communities? A good investigator can work in any area.
  • Does he have personal feelings about the case or defendant? Some crimes, such as murder, child abuse or rape, can contain emotional aspects that might subconsciously affect the investigator during the case.
  • Is there a conflict of interest?
  • Is the investigator licenses in the state they are asked to work?  Licensing requirements vary from state to state. In Pennsylvania, each county Clerk of Courts and District Attorney is responsible for ensuring that the license applicant meets the criteria of the Private Detectives Act (22 P.S. 1 et seq.)  And ultimately, a judge of the Court of Common Pleas denies or approves the application. The license does not guarantee a qualified investigator.

If an attorney is satisfied with his or her choice, then the investigator’s fees and expenses should be discussed. Some investigator’s fees and expenses should be discussed. Some investigators, like attorneys, charge a flat rate and others, an hourly rate. Expenses are usually billed separately. Please remember, if an attorney contracts directly with the investigator, then the attorney is liable for the bill, even if the client fails to pay. So, unless costs are being advanced, make sure the client advances enough money to cover the investigation before anyone is hired. If the attorney is court appointed, inform the investigator that the bills will be reviewed and approved, or cut, by the court because the money is coming from the court budget.

Before the attorney sends the investigator out on the trail, the attorney must set clear boundaries. The first rule is “never pay for information from a potential witness.” Though perhaps innocently meant, such payments can blow up in an attorney’s face at trial, especially if the sum is generous.  Any aura of witness neutrality will be lost. Or, worse, a District Attorney may charge you with bribing the witness. Secondly, discuss the theory of the case so the investigator will understand what you want to prove or disprove. If the investigator is well chosen, he or she should come up with ideas for getting the job done that an attorney may not have considered. Finally, an attorney should be realistic. Unlike television, private investigators, real private investigators cannot conclude a case in 60 minutes or less.

By Robert Meinert