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November 22, 2005

Criminal Investigation Ethics

One of the things lawyers have to learn is that the law has fewer definitive answers than it has ranges of possibility. An incident last week raised one of these possibility ranges, namely:

Exactly what is your duty to identify yourself when you're investigating a case?

Here's the situation: Say you have the home and work addresses and phone numbers of a complaining witness (CW). The CW gave the police a statement, so you'd like to talk her to get another statement to have something to impeach her with if she tells you a different story than she told the police. But, of course, you know the CW probably won't want to talk to you, so you don't want to call. Calling on the phone makes it easy for the CW to hang up on you; visiting the CW in person makes it at least a little more likely she'll talk to you. And you don't really want to bother her at work because, well, she might feel less like talking in that setting, you might be interrupting something if you tried to visit her there, etc. So you decide to try to catch her at home.

So you go visit the CW's apartment. You go on weekends because you know she works during the week. You visit four times in the middle of different Saturdays and Sundays, but the CW is never home. On your last try, as you and your investigator are leaving and in the parking lot after finding the CW not home once again, you run into one of the CW's neighbors and ask the neighbor: “Do you know CW? Does she live here?” You're just asking because after four visits you're starting to wonder if you're in the right place. The neighbor says yes, but asks why you want to know.

You: “She was involved in an incident a couple of months ago and we're investigating that. I just was hoping to talk to her about it.”

Neighbor: “Would you like me to give her a message?”

You: “No. I'll just try to call her or something, but thanks.”

And that's it. Then you get to court and during pre-trial plea negotiations the prosecutor starts off with “There are some really bad things going on with this case.” Huh? “Somebody has been harassing the victim, terrorizing her neighbors, asking questions without identifying themselves.”

You: “Are you saying we're not allowed to investigate?”

Prosecutor: “No, but... Do we need to take this up with the judge?”

You: “Go ahead. We haven't done anything wrong.”

But have we? What do you think? Should we have given our card to that neighbor? Was it unethical not to do so?

My answer is that, probably yes, we should have said that we were investigating on behalf of the accused in the case. Some criminal attorneys I've talked to agree, but others take the position that you don't have to identify yourself as a criminal defense attorney/investigator to everyone you meet on the street, so we had no obligation to tell the neighbor anything.

So, any thoughts?

Posted November 22, 2005 10:08 AM | 3L crimlaw

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Interesting... you obviously would have had to identify yourself to the CW, but whether to identify yourself to the neighbor is a grey area. I'd be inclined to do it, just to avoid the appearance of impropriety, but I'm not sure it's a necessity - unless you are asking that person questions about the case or the CW. Say it were a postal worker who happened to be there at the time you were at the residence. Would you be obliged to identify yourself to the postal worker before asking if the CW did, indeed, live there?

Posted by: Gideon at November 22, 2005 01:10 PM

I was an investigator for a while and in DC the general consensus was that you had to ID yourself to the CW or whoever else would potentially testify in court but anybody else is gravy.

Posted by: Melissa at November 23, 2005 04:23 AM

the two different agencies i have worked in have different policies about this. one required identification all the time, and one didn't.

but another issue is that according to investigators i've talked to, most of the CW's will talk to us anyway, even if they know we're representing the defendant. sometimes people just end up acting against their interest.

unless there's a state law, i think you're ok. and the prosecutor really sucks if they're characterizing your interaction as "terrorizing" the neighbor.

Posted by: monica at November 23, 2005 10:43 AM

I agree with pretty much everyone else here. You have to identify yourself to the CW, but not everyone you come across when you look for your CW.

And, in the cases where I can find my CW, most of them are surprisingly willing to talk.

A lot start with, "Well, I'm not going to talk to you about the case... but I will tell you that he did this and that, and I said this and he said that."

When I get a word in edgewise, I say something like, "Well, absolutely, you don't have to talk to me if you don't want to..." I keep asking questions, and they keep answering.

Just like our clients answer all of the police questions, even though they know they shouldn't.

Posted by: blondie at December 6, 2005 07:47 PM

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