Investigation of Federal Criminal Defense Cases

Annual Criminal Justice Act Training Seminar
Greenbelt, Maryland
November, 2002

Larry Allen Nathans
Nathans & Ripke LLP
120 East Baltimore Street, Suite 1800
Baltimore, Maryland 21202
410.783.0272.
410.783.0518 (facsimile)
nathans@bnllp.com

I. Thoroughly Analyze the Available Facts and Legal Issues Germane to Your Case Before Beginning Your Investigation:

A. Develop a system for scrutinizing all of the details of your case. This system should include a thorough analysis of: Your system will obviously be more complicated if there are multiple defendants. If there are multiple defendants, it is essential that you consider your case in regards to the prosecution's evidence against the other defendants as well as the other defendant's trial strategy.

1. the elements of the crimes that the prosecution must prove;

2. which witnesses will be called by the prosecution in order to establish the proof of each element;

3. the specific testimony that each prosecution witness may give;

4. all potential physical evidence that the prosecution will attempt to introduce;

5. your defense theory as to each element charged;

6. all possible in limine motions and/or objections that you might raise as to each witness' testimony and/or items of physical evidence that the prosecution may seek to introduce;

7. your possible cross-examination as to each witness called by the prosecution;

8. all witnesses that you might call to support an affirmative defense, impeach a witness and/or provide character evidence;

9. all physical evidence that you might attempt to introduce and/or use for impeachment;

10. all possible motions in limine and/or objections that the prosecution might raise regarding the testimony of the witnesses you call or the physical evidence you plan to use;

11. the potential cross-examination of the witnesses that you call; and

12.all possible rebuttal testimony and/or evidence that the prosecution may attempt to introduce.

B. Determine the general and specific goals of your investigation. Depending upon the analysis of your case, said goals may include:

1. finding out what the prosecution witnesses have and/or will say;

2. developing information for cross-examination:

a. see if you can elicit testimony favorable to your defense theory;

b. uncover inconsistent versions;

c. develop motives and/or reasons for a witnesses' adverse testimony;

d. establish what the witness does not know and/or cannot explain; and

e. find witnesses and/or physical evidence that will impeach the witness's version.

3. locating and cultivating defense witnesses; and

4. finding physical evidence helpful to your defense;

5. developing favorable information for sentencing.

C. BRAINSTORM - Think of ways in which you can thoroughly and aggressively investigate your case and affect a positive result.

II. Evaluate the Strengths and Weaknesses of the Available Office Investigative Resources:

A. Do you have a choice of more than one investigator?

1. Is there an investigator in your office that possesses strengths that are more suited to your particular case?

a. a greater familiarity with the type of crime to be investigated;

b. a more extensive knowledge of particular individuals involved in the case and/or geographical areas in which the witnesses are from and/or in which the events took place; and

c. language and/or cultural skills deemed important to your case.

2. Is one investigator more available to work on the case?

a. consider the investigator's other commitments; and

b. keep in mind that it is almost always necessary to have free access to the investigator during the "crunch time" right before trial.

3. Are you more comfortable working with a particular investigator?

B.Understand the strengths and weaknesses of the investigator that you will be working with:

1. is he/she a hard worker?

2. is he/she an independent thinker?

3. is he/she thorough?

4. can you trust the information that you are provided?

5. can the investigator help develop your strategy and give you creative input? and

6. how much energy will it take to monitor his/her work?

III. Get the Investigator Involved in the Case - Investigation is a Team Effort:

A. Provide a written request to the investigator:

1. reasons for writing the request:

a. creates a formal record of what you want accomplished;

b. forces the attorney to think through his/her case; and

c. helps the investigator focus;

2. keep a copy of all requests; and

3. establish a schedule for completing requested tasks.

B. Let the investigator know the extent of his/her involvement which will be required:

1. allows the investigator to arrange priorities;

2. helps avoid conflicts with other attorneys and investigators in the office;

3. keeps the attorney and the investigator aware of other office needs, deadlines, amount of time and effort projected for the investigation, etc.; and

4. informs the investigator of his/her type of involvement needed in the case;

a. "slight involvement" (e.g., serving subpoenas, obtaining documents);

b. "limited involvement" (e.g., bail preparation, interviewing one or a few witnesses); or

c. "substantial involvement" (e.g., understanding and helping to shape the defense theory and significant investigative responsibilities).

C. Make sure the investigator receives copies of the following information in any case in which he/she will be substantially involved:

1. formal charging documents (e.g., indictment, information, complaint, etc.);

2. federal police reports and supplements, (e.g., FBI 302s, DEA 6s),;

3. other available state and local police reports, including supplements;

4. all forensic reports and supplements;

5. witness statements;

6. client's version - if one has been obtained;

7. your version of the prosecutorial theory;

8. your version of the defense theory;

9. a list of priorities and realistic deadlines;

10. updated information when uncovered and/or provided in discovery; and

11. blank authorization for release of information forms signed by your client.

D. There are substantial benefits associated with meeting with the investigator prior to beginning the investigation:

1. clarifies ambiguities;

2. narrows the scope of the investigation;

3. provides input for the attorney;

4. keeps the attorney and the investigator updated;

5. establishes the attorney's role and the investigator's role in the investigation; and

6. forces the attorney to think about the case and focus upon the investigation early in the case.

E. Have the investigator meet the client:

1. The attorney that will represent the client throughout the case should conduct the initial interview:

The attorney should decide when to interview the client regarding the facts of the case. The attorney may conclude that it is not in the client's best interest to be interviewed until after the investigation has begun or has been completed.

a. the attorney can answer legal questions that the investigator can not;

b. the client expects to see an attorney; and

c. it helps develop a positive relationship between the attorney and his/her client.

2. If there is time the investigator should meet the client early in the case in order to develop a relationship with the client and in order to obtain specific information needed for the investigation.

F. Review the physical evidence, if possible, before interviewing the witnesses:

1. It is often very helpful to review the evidence with the investigator. The benefits of this procedure are that it:

a. provides the investigator a more thorough understanding of the case;

b. allows the investigator to be more specific when questioning witnesses; and

c. affords you an additional perspective regarding the physical evidence in the case.

2. You may decide it is more prudent not to have the investigator with you when you review the evidence in the possession of the prosecution because:

a. it may not be time efficient;

b. you may be trying to "sandbag" the prosecutor into thinking that you are not working hard and/or that you are not aggressively investigating the case; and

c. the physical evidence may be insignificant and/or scant.

3. You may wish to take photographs, obtain xerox copies of and/or videotape the evidence in the possession of the prosecution;

4. Do not allow the prosecutor and/or the police to watch you review evidence in their possession in a way in which you alert them as to what you believe the significant evidence to be:

a. you may wish to ask for photographs and/or copies of documents that are not of value to you;

b. do not overly concentrate on a particular piece of evidence in their presence; and

c. you may decide to insist on being able to review the evidence without the prosecutor and/or police being present.

G. Have the investigator prepare a separate file so that he/she will have access to documents and other information at all times:

1. helps the investigator keep organized;

2. facilitates the review of certain documents, memoranda, notes, etc. from the investigator's file prior to testifying in your case;

3. suggest to the investigator that it is beneficial to maintain old investigative files for possible future reference; and

4. require the investigator to document his/her efforts (e.g., telephone calls, attempts to contact witnesses, times and dates, etc.).

H. Receive updates from the investigator and make sure that you provide new information and guidance throughout the investigation:

1. keep in contact with the investigator;

2. make sure that you provide additional discovery material, reports, etc. during the investigation;

3. let the investigator know what your needs are as they develop; and

4. make sure that you apprise the investigator of previously requested work that is no longer necessary.

I. Try to understand and accommodate the investigator's interests:

1. are you giving the investigator too much work?

2. are you providing enough factual, legal and strategic information so that the investigator can do a professional job?

3. are you assigning work at the last minute when you could have assigned it earlier?

4. are you asking the investigator to perform trivial tasks that may be done without wasting the investigator's time?

5. are you treating the investigator with respect?

6. are you needlessly putting the investigator in dangerous or embarrassing situations?

7. are you unfairly monopolizing the investigator's time and/or his/her resources?

8. are you continually asking the investigator to tap "inside sources"?

9. are you assigning the investigator interesting and/or challenging work?

10. are you forgetting to inform the investigator of tasks that are no longer needed?

11. are you giving the investigator credit when he/she does good work? and

12. do you listen to what the investigator tells you?

J. Review ethical issues with the investigator. Some of the more standard areas of concern include:

1. the manner in which the investigator introduces him/herself;

2. giving legal advice to witnesses;

3. destroying evidence;

4. obstructing police investigations;

5. threatening and/or intimidating witnesses;

6. interviewing witnesses represented by counsel; and

7. client and/or witnesses perjury.

IV. Interview the Witnesses:

A. It is important to interview the witnesses as early as possible:

1. the witnesses are more likely to remember details;

2. the witnesses may be more easily located;

3. the police and/or prosecution may not yet have solidified the version they want;

4. defense witnesses will better understand the significance of what they say to the police and/or prosecution, as well as their rights and obligations;

5. prosecution witnesses may be more apt to talk to the defense early in the case;

6. you may find physical evidence not available later in the case; and

7. the prosecution may not have already told the witnesses that they are not obligated to speak with the defense.

B. It is almost always preferable to obtain information and/or conduct an interview in person rather than by telephone or letter:

1. it is easier to establish a rapport with a witness;

2. shows the witness that you think that he/she is important (often the police and prosecutors fail to treat the witness with respect and/or minimize the importance of the witness);

3. shows the witness that the defense team is professional and motivated;

4. allows the attorney to "size-up" or get a "feel" for the witness; and

5. makes it more difficult for a witness to ignore the defense and/or to cut off defense inquiries.

C. You may need to be creative when attempting to locate witnesses - especially informants:

1. ask the prosecutor and/or police;

Try to avoid asking the prosecution and/or the police to help you locate the witnesses. By asking for their help, you notify them of your plans and therefore, make it easier for them to thwart your investigation by directly or indirectly telling the witnesses not to cooperate with you.

2. discovery material may provide addresses, telephone numbers and/or leads;

3. ask your client;

4. speak to other witnesses;

5. use the telephone directory (current and past directories, if needed);

6. review Department of Motor Vehicle records;

7. find family members and/or friends of the witness;

8. find former and/or present associates, neighbors and/or friends of the witness;

9. check criminal records;

10. call local jails and/or prisons:

a. the United States Marshal's Service will usually bring incarcerated witnesses/ informants to local facilities immediately prior to the witnesses' testimony; and

b. it is very infrequent that the names of the witnesses/informants will be changed while they are incarcerated.

11. contact local and/or Federal Bureau of Prison personnel;

12. check with local hotels and/or motels to see if the non-incarcerated witness has been placed there by the U.S. Marshals and/or agents in your case;

13. review postal records and speak to postal delivery persons;

14. check public city, county, state and federal records (e.g., land, marriage, business, bankruptcy, divorce, etc.);

15. use cross-reference locator manuals;

16. find former and/or present employers;

17. contact probation/parole officials;

18. subpoena documents (e.g., telephone records, tax records, school records, etc.);

19. use surveillance techniques;

20. check with law enforcement officials;

21. check with local merchants, street contacts, former clients, etc.;

22. contact public utilities (e.g., gas, electric, water);

23. get in touch with local bail bondsmen;

24. examine school records for forwarding addresses of a witness' children;

25. contact the Secretary of State for records pertaining to corporations and their officers;

26. get in touch with military branch locator services;

27. contact airline companies, Amtrak and/or car rental agencies;

28. check voter registration records; and

29. follow up on previous efforts by re-contacting persons and/or by asking them to call you if they develop information about how to find the witnesses.

D. It is often possible to interview witnesses that appear reluctant and/or have previously refused to speak with the defense. You may wish to employ one or more of the following techniques in order to get the witness to speak with you:

1. advise the witness that the defense is merely seeking to find out the truth;

2. approach the witness in a non-threatening and likeable manner:

a. get the witness to like you and/or your investigator;

b. let the witness talk - do not interrogate him/her; and

c. be cognizant of using non-aggressive body language.

3. inform the witness that he/she is not in trouble;

4. explain to the witness that the prosecution and/or police cannot legally inform him/her not to speak with the defense;

5. tell the witness that if he/she was charged with a crime that they would want to know what people were saying against them;

6. advise the witness that your attempt to interview him/her is a normal and accepted practice;

7. inform the witness that you have an obligation as an attorney to defend your client;

8. apprise the witness that after you obtain all of the information in your case, you will advise your client whether he/she should go to trial (insinuate that cooperation with you may forestall an appearance in court by the witness);

9. tell the witness that you only have a few questions for him/her and see how far the witness will let you go with the interview; and

10. get the witness to cooperate with you because he/she feels sorry that you came so far to see him/her.

E. It is important to diligently prepare for all interviews in advance:

1. accumulate as much information as possible before conducting the interviews:

a. read all available police reports and review the discovery provided;

b. obtain as much background information regarding the witness as is possible:

(1) speak to your client;

(2) talk to other witnesses;

(3) perform an independent investigation.

c. determine whether the witness is apt to have a bias against the accused or the prosecution.

2. prepare a thorough list of general and specific questions germane to each witness or type of witness prior to conducting your interviews;

It is a good practice to prepare general printed interview sheets for different types of cases (e.g., identification, informants, consent defenses in sexual assault cases). You can reuse these forms in subsequent cases without starting over again. Additionally, witnesses are often likely to answer questions from a printed form that they might not otherwise respond to.

3. discuss the preparation of reports and interview notes with the investigator before conducting any interviews:

a. will you have to turn over your work to the prosecution?

b. should your opinions and/or those of the investigator go in your notes and/or reports?

c. should information be put in reports that hurts your client's position?

d. do you prefer that the investigator not prepare a report or take notes at all?

e. should you attempt to have the witness sign a statement?; and

f. should you attempt to record the interview?

4. the preparation of investigative reports should be done in a professional manner:

a. reports should be typed if possible;

b. edit all reports thoroughly; and

c. keep a copy of all reports in your file as well as in the investigator's file.

5. determine who should conduct the interview and/or whether it is beneficial to conduct the interviews jointly:

a. should you be at the interview?

(1) is the witness important?

(2) do you want to get a "feel" for the witness before trial?

(3) will the defense likely get an opportunity to interview the witness again?

(4) what are your time constraints?

(5) will the investigator likely get more information if you aren't there?

(a) is he/she less intimidating?

(b) are you able to get witnesses to speak to you generally?

(c) does the investigator have an inside track with the witness because of his/her prior employment, experiences, etc. that you do not possess? and

(d) is there some other particular case specific reason why it would be better for the investigator to be alone?

(6) will the investigator perform the interview as you want if you are not there?

b. will the witness provide information to you that he/she will not provide to an investigator?

(1) will the witness refuse to speak to an investigator because he/she is concerned that the investigator will later testify about the conversation (e.g., especially F.B.I., D.E.A., and A.T.F. agents)?

(2) can you approach the witness in a way that appears to be casual or non-threatening that an investigator cannot?

(3) does the witness expect that you would personally contact him/her (e.g., especially professional persons such as other attorneys, doctors, etc.)?

(4) consider the drawbacks associated with not having a witness (i.e., investigator) with you when you conduct the interview alone:

(a) will you be able to impeach the witness if he/she later changes his/her story? and

(b) will you be forced to become a witness in the case?

c. will the witness likely feel intimidated if more than one person approaches him/her?

(1) will this cause the witness to decide not to speak with the defense? and

(2) is there some benefit associated with trying to purposely intimidate and/or make the witness feel uncomfortable?

d. if it is decided that the witness will be interviewed jointly, establish the procedure in advance for conducting the interview:

(1) who will ask the questions?

(2) will there be joint questioning?

(3) who will take notes?

(4) should notes be taken during the interview? and

6. flexibility in the timing, preparation for, and style of the interview may obviously develop depending upon the circumstances of your case and/or considerations associated with the witnesses.

F. Coordinate with the investigator time and travel plans:

1. attempt to limit the attorney's and the investigator's travel time by planning ahead;

2. consider the best time to find and/or interview the witnesses;

3. determine where is the best place to conduct the interview (e.g., residence or business);

a. where will the witness more likely have time to speak?

b. will certain individuals be likely to interfere with access to the witness and/or curtail your questioning (e.g., employees, parents, teachers)? and

c. will the witness more likely speak to the defense if you are discreet?

4. decide if you and/or the investigator should leave your name and/or business card if the witness is not there:

a. will this cause the witness to attempt to avoid you in the future?

b. will this make the witness to contact the police and/or other persons who may tell him/her not to speak with you? and

c. do you and/or the investigator have sufficient time to try to find the witness again?

5. take advantage of the investigative resources of other Federal Public Defender Offices and/or State Public Defender Services not in your jurisdiction.

G. Obtain specific information regarding what the witness knows, saw, heard, has been told, etc. on

*It is sometimes extremely beneficial to re-interview certain witnesses in order to obtain further impeachment information and inconsistent stories. It is also helpful to re-interview specific witnesses after they have met with the prosecutor before trial in order to determine what they will actually say at trial.

*It is almost always preferable to interview witnesses separately. Your decision as to where or when the interview will take place may be affected by this goal.

1. find out what the witness will testify to that can both hurt and help your client;

2. establish the sequence in which the witness viewed or heard events;

3. find out if the witness took any notes, pictures, or recorded any events. Attempt to view and/or obtain copies, if possible, from the witness;

4. determine the relationship between your client and the witness;

5. establish if the witness is biased against your client and/or his/her class, race, or ethnic, group, etc.;

6. find out what information has been provided to the witness by the police, prosecution and/or other persons;

7. ascertain what the witness has told:

a. the police;

b. the prosecution;

c. any other people.

8. follow-up on vague or non-specific answers by the witness;

9. try to lock the witness into giving specific answers to specific questions;

10. try to establish all of the events and/or details that the witness does not know or did not view or hear;

11. find out if the witness can verify his/her position;

12. determine if there are other witnesses that saw or heard what the witness observed;

13. determine if the witness can provide testimony that will impeach other witnesses; and

14. establish a foundation for follow-up interviews. Ask the witnesses when is the best time and place to contact you again?

H. Elicit as much background information from the witness as is needed and is possible:

It may not be possible, necessary or practical to receive all of the answers desired. You should prioritize what information you need and plan and conduct the interview in a manner that will most likely help you obtain as much information as possible.

1. date of birth;

2. place of birth;

3. social security number;

4. driver's license information;

5. other names the witness has been known by, including former married and maiden names;

6. present address and with whom the witness resides;

7. prior addresses and with whom the witness resided;

8. military history;

9. education;

10. alcohol and/or drug history;

11. criminal record and arrests;

12. assets:

a. property owned (real and personal);

b. income from all sources;

c. bank account numbers and institutions;

d. stocks and/or bonds;

e. present net worth; and

f. any other types of assets.

13. debts:

a. to whom and/or to what company or organization the witness owes money;

b. payment schedule(s);

c. foreclosures and/or legal suits presently pending and having occurred in the past;

d. child care responsibilities (including court orders);

e. paternity suits;

f. alimony;

g. any other person the witness supports or helps support financially;

h. any other form of debts (e.g., to drug dealers, loan sharks, etc.); and

i. bankruptcy history.

14. marital history:

a. prior husband(s) or wife(s);

b. offspring from marriages; and

c. locations of ex-spouse(s) and ex-girlfriend(s) and/or boyfriend(s)

Prior spouses and lovers are often the best sources for obtain impeachment material.

15. family members;

16. best and/or longest known friends and associates;

17. employment history:

a. where employed;

b. when;

c. how much made;

d. reason for leaving;

e. supervisor(s);

f. background checks;

18. enemies:

a. names;

b. addresses; and

c. reasons for dislike.

19. taxes:

a. last time filed?;

b. location filed;

c. see if the witness will let you look at a copy; and

20. psychiatric history.

I. Attempt to elicit additional information from and/or about any informant(s) in your case:

1. Informants are often willing to be interviewed because they:

a. are reluctant witnesses;

b. like or feel a responsibility to your client;

c. want to let your client know what they will say in advance of trial;

d. want it to be known by your client and/or other individuals that they will be incarcerated with and/or come into contact with on the street, that they cooperated with the defense;

e. have not been treated favorably by the prosecution;

f. have been already sentenced and do not feel as strong a need to please the prosecution;

g. may like you and/or your investigator;

h. are bored;

i. are not intelligent and/or sophisticated;

j. don't want to send you away after you have demonstrated an effort to locate them and/or to meet with them;

k. desire to be fair;

l. don't realize they can refuse to be interviewed; and

m. are scared of your client.

2. It is important to persuade an attorney that you should be allowed to interview an informant that he/she currently represents:

a. many attorneys will automatically allow you to interview the informant;

b. some attorneys will permit you to interview their client because of their prior relationship with you or for some other personal reason;

c. you can often persuade an attorney that it is in their client's interest to speak with the defense in your particular case;

d. some attorneys are overly concerned that they will be perceived as not being fair or properly accommodating if they do not permit the interview;

e. often attorneys will provide you with information about their informant client even if they preclude or the informant refuses to be interviewed;

f. you should attempt to persuade the attorney that the prosecutor cannot interfere with the right of the client to grant an interview to the defense, nor can the prosecutor or the court hold it against the client;

g. make sure that the attorney understands that the decision to be interviewed is the informant's choice and not the attorney's; and

h. unbelievably, many attorneys will allow you to conduct an interview without the attorney being present.

3. Obtain as much information as you can from the informant and/or from other sources, concerning the history of the witness as an informant and the informant's role in your case. This information should include:

a. agents and agencies that the informant has worked for or has been associated with:

(1) name of agent(s) and agency(s);

(2) how the informant met or became involved with agent(s) and agency(s); and

(3) time frame began and terminated working with agent(s) and agency(s).

b. financial arrangement with each agent and/or agency that the informant has worked for or has been associated with:

(1) formal and informal arrangements;

(2) how much money made over specific periods of time;

(3) expenses provided; and

(4) payment procedures and receipts signed for.

c. alleged reason for becoming an informant;

d. non-financial benefits received as the result of being an informant:

(1) bail matters;

(2) offenses not charged;

(3) reduced charges;

(4) sentencing recommendations;

(5) recommendations as to institutions incarcerated in;

(6) agreements to reduce sentence(s), reduce or modify probation(s) or to influence parole;

(7) letters, calls or contacts to other police agencies or prosecutors;

(8) witness protection and/or relocation programs;

(9) agreements not to charge or to "go easy" on family members or friends; and

(10) non-economic or charge related benefits to family members.

e. training as an informant (formal and informal);

f. notes and/or diaries completed while an informant;

g. narcotics supplied by agents;

h. number and types of cases worked on;

i. use of body bugs, wiretaps, pen registers and other recorded conversations:

j. obtain specific information regarding the informant's role in the case and relationship with your client:

(1) payments;

(2) benefits;

(3) how met client;

(4) knowledge about case details;

(5) relationship to client;

(6) agent(s) and agency(s) involved;

(7) investigative techniques;

(8) inducements to client; and

(9) surveillances, tape recordings, photographs, etc.

V. It Is Usually Necessary to Obtain and/or Review Documents:

A. Make sure the prosecution provides copies of and/or access to all discoverable evidence pursuant to Rule l6, the Jencks Act, Brady, Giglio and formal and informal discovery agreements:

1. pretrial motions requesting discovery are usually necessary;

2. it may be necessary to file motions for sanctions and/or dismissal if you are not adequately receiving discovery;

3. additional discovery can often be obtained informally during meetings with the prosecution and/or co-counsel (a cordial relationship with the prosecution is often very helpful);

4. attempt to get the prosecutor to provide non-Rule l6 discovery as early as possible; and

5. the Court may be willing to pressure the prosecutor into providing additional discovery in hopes that the client will plead guilty and/or that the trial time will be shortened.

B. Attempt to obtain documents not provided to you in discovery without involving the prosecution and/or the police:

1. benefits of obtaining documents without the prosecution's knowledge:

a. it may allow you to hide your defense strategy and/or the proof associated with it;

b. prevents the prosecution from reviewing evidence that they may not have obtained or have obtained and have not attached adequate value to;

c. curtails the risk of unintentionally providing inculpatory evidence to the other side;

d. if you must disclose the evidence, it allows you to decide the manner and timing of the disclosure; and

e. by obtaining documents on your own you may help lull the prosecution into complacency.

2. how to acquire documents without the prosecution's knowledge:

a. authorization for release of information forms:

(1) it is usually advisable to have your client sign blank authorization forms early in your representation;

(2) witnesses will sometimes agree to sign either general or specific authorization forms allowing you to look into their backgrounds (e.g., psychological, military, drug and alcohol and educational records);

b. contact co-defendant counsel in your case and/or attorneys involved in collateral matters;

c. review public records (e.g., land, credit, criminal, institutional base files, etc.);

d. request personal and business documents from witnesses and business representatives;

e. develop inside sources (e.g., prosecutors, agents, local police officers, court clerks); and

f. subpoena documents ex parte and under seal pursuant to Rule l7(c) of the Federal Rules of Criminal Procedure:

(1) will the Judge sign an ex parte subpoena under seal?

(2) will the party notify the prosecution even if you attempt to obtain the material this way (e.g., police departments)?

(3) can you persuade or educate the Judge, through this process, as to the law or helpful facts in your case without having the Judge receive input from the prosecution?

(4) does the clerk handling your ex parte sealed subpoena understand that he/she cannot disclose it to the prosecutor? and

(5) will the court allow a subpoenaed party to meet their obligation by turning over the material to your office rather than to the court or at trial?

3. It is almost always essential to obtain records for impeachment purposes. Depending upon the facts of your case, you may want to gather the following types of records:

a. employment;

b. psychiatric/psychological;

c. drug and/or alcohol;

d. medical and/or hospital;

e. police:

(1) internal files regarding prior complaints and/or disciplinary actions;

(2) prior police reports written by a particular officer;

(3) transcripts of prior testimony;

(4) broadcast tapes and/or transcripts;

(5) informant files; and

(6) arrest photographs.

f. jail and/or prison:

(1) visitor logs;

(2) adjustment reports and/or actions;

(3) commissary and/or financial accounts; and

(4) health.

g. court records:

(1) search and/or arrest warrants and attached affidavits;

(2) bail hearing transcripts and/or tapes of the proceedings;

(3) release documents;

(4) release violation petitions and/or transcripts of tapes of corresponding hearings;

(5) written statements of facts attached to or incorporated in plea letters;

(6) transcripts and/or tapes of guilty plea proceedings;

(7) transcripts and/or tapes of the witnesses' testimony at any proceeding;

(8) presentence memoranda filed by defense counsel and/or the prosecution;

(9) sentencing transcripts and/or tapes.

h. probation and/or parole records for current and past cases including pre-sentence reports of witnesses;

i. department of motor vehicles;

j. credit (be aware of the prohibitions contained in the Fair Credit Reporting Act);

k. tax;

l. newspaper articles, television, and/or radio tapes or transcripts;

m. telephone/cell phone/pager;

n. credit history;

o. employment;

p. MVA (license and vehicles owned)

q. mortgage and/or leasing;

r. marital, divorce and custodial (note - marital license records contain previous divorce records);

s. civil cases and/or judgments;

t. bankruptcy;

u. land;

v. travel (passport, airlines, rental cars, hotels/motels, etc.);

w. bank (e.g., loan applications, bank balances, deposits and withdrawals, etc.);

x. education; and

y. military.

VI. Personally Observe the Alleged Crime Scene and Other Important Locations:

A. It is necessary for you and the investigator to examine the significant locations early on in the investigation:

B. Observation of important geographical areas provides you with numerous benefits:

1. provides you a general overview of the area(s) involved in your case;

2. gives you specific details as to distances, lighting, etc.;

3. supplies you leads as to possible witnesses and defense theories;

4. affords you detailed knowledge that is helpful in discussing the case with your client, and the witnesses;

5. allows you to have a more thorough basis of knowledge when you speak with the prosecutor and/or review discovery materials;

6. supplies you with an intangible understanding of events, places and persons that you may not otherwise develop; and

7. helps establish that you are the most knowledgeable person in the courtroom and the person for which the jury should rely upon to settle disputes.

C. It may be important to take photographs, videotapes and perform forensic tests at the essential locations in your case.

VII. EVALUATE POTENTIAL SENTENCING ISSUES EARLY AND INVESTIGATE ACCORDINGLY

A. Analyze your case in order to determine what potential charges can be lodged against your client;

B. Find out which guideline(s) is applicable;

C. Assess what conduct might be considered relevant for sentencing purposes;

D. Determine which possible Chapter Two Offense Conduct guidelines might be applicable in your case?

E. Evaluate the specific offense characteristics in order to determine if your client can avoid additional points;

F. Scrutinize Chapter Three Adjustments in order to avoid additional points and to seek reductions;

G. Search through Chapter Four Criminal History criteria in an effort to minimize your client's criminal history category, criminal livelihood and career offender problems - obtain transcripts, sentencing papers, police reports, information concerning whether defendant had counsel in order to determine if:

1. the conviction was obtained before your client's 18th birthday [4A1.2(d)];

2. the conviction was for a related crime [4A1.2(a)(2)];

3. part of the sentence was suspended [4A1.2(b)(2)];

4. the conviction was for a crime that does not count [4A1.2(e)]);

5. the sentence occurred within the applicable time period [4A.1.2(e)];

6. the defendant's criminal history score significantly over-represents the seriousness of his/her prior conduct [4A1.3]);

7. the defendant can avoid being classified as a career offender [4B1.2]:

a. was the defendant's prior convictions legal

b. were the convictions felonies

c. were the convictions for crimes of violence or drugs.

H. Examine and investigate all possible areas in which downward and upward departures may be applicable:

1. debrief your client thoroughly concerning all facets of his/her life and the facts of the case;

2. speak to family members, friends, etc. in order to gain support and/or documentation;

3. obtain relevant medical, psychiatric, employment, school, military, and business records;

4. interview the fact witnesses;

5. obtain character letters.

VIII. There are Unlimited Other Investigative Avenues that May be Employed in Your Cases.

A. Examples of some of these techniques include:

1. displaying photographs, photospreads, diagrams, etc., prepared by the defense;

2. bolstering alibi defenses through the use of timed distances, television programs, etc.;

3. conducting surveillances and/or performing license plate checks at particular businesses and/or residences;

4. finding out which witnesses the prosecution has called before the grand jury by:

a. getting someone in your office to observe which witnesses in your case go to the United States Attorney's Office or the grand jury room on the day the case is being indicted;

b. checking the Marshal's log or calling the Marshal's office to see if specific incarcerated witnesses are in the lock-up on the day of the grand jury proceeding; and

c. watching to see if certain witnesses appear to get reimbursement checks for their grand jury proceedings.

5. speaking to past sexual partners of alleged sexual assault victims;

6. interviewing neighbors, friends, enemies, family members, etc., of certain witnesses in order to obtain impeachment material;

7. interviewing emergency medical personnel regarding your client's and/or a witness' mental, physical and/or drug or alcohol usage when examined;

8. performing lighting, hearing and/or visibility tests germane to the facts of your case;

9. developing the testimony of expert defense witnesses;

10. reviewing scientific books, journals, reports, etc., regarding crucial issues in your case;

11. obtaining photographs of your client during different time periods;

12. taking photographs of your client immediately after his/her apprehension; and

13. searching through trash cans for documents and/or narcotics' paraphernalia.

B. It is always necessary to Be Creative. Do not limit yourself by what is commonly accepted or considered to be adequate.