H. Michael Steinberg, Colorado Criminal Defense Lawyer | March 17, 2024 | Originally published on Colorado Criminal Lawyer Blog

The Role Of A Criminal Defense Lawyer

A Colorado criminal Defense lawyer is primarily an advocate. They use their legal knowledge and courtroom experience to not only defend your rights and argue on your behalf in and out of the courtroom, but they are also responsible for developing a legal strategy, negotiating plea deals, and counseling their clients at every stage on both large and small decisions along the way.

Although a good defense lawyer will do most of the investigation of the evidence and leads, their primary role is to address issues of criminal law and not a “detective-like” search to locate and uncover possible new evidence and witnesses.

On the other hand, most criminal cases are relatively straightforward …hopefully cases your experienced criminal defense lawyer will have worked many times in their career… and therefore thet will not require, and cannot justify, the additional significant expense of a privately funded investigators.

Understanding the role of a criminal defense lawyer and the role of a private investigator is essential for anyone facing criminal charges and seeking justice in the legal system because there will be cases that DO REQUIRE and do justify the services and the cost of an excellent private investigator.

Why Your Criminal Defense Lawyer Cannot Be Your Investigator – Testifying At Trial

Private investigators specialize in tasks such as uncovering new facts, conducting surveillance, and compiling detailed reports to support or clarify the development of a defense strategy.

In the proper case, the value of expert investigators cannot be overstated. Experienced investigators are equipped with the know-how, the means, and the acumen to painstakingly collect and evaluate information that has the potential to influence significantly a case’s resolution by plea bargain or in trial. Professional investigators are skilled in fact-finding, questioning witnesses, and examining evidence with eyes that are sharpened by years of investigation expertise. This specialized skill set can be critical for building a robust defense strategy, ensuring that all facets of a case are thoroughly explored and accurately presented.

Most importantly, investigators can testify at hearings and trials to the results of their investigation. Criminal defense attorneys cannot.

A Closer Look At Why Criminal Defense Lawyers Cannot Testify

Lawyers have rules (ethic codes) that prohibit criminal defense attorneys from taking the stand at trial and testifying as the results of their interviews with witnesses and the discovery of evidence. In fact, there are tactical dangers if a criminal defense lawyer acquires direct and significant evidence that supports the defense case.

If a lawyer is allowed to testify at trial about what they may have uncovered in a fact-based investigation, the distinctions between the lawyer’s role as advocate and the role of an investigator become blurred. When a criminal defense lawyer serves as an investigator, that role has the potential to compromise a trial’s impartiality. The impartiality of an investigation can become compromised if lawyers intentionally or unintentionally bias their findings to favor their client’s case.

Furthermore, the “dual duty” created in this context can give rise to clear conflicts of interest, whereby the information obtained during an invetigation may impair the criminal defense attorney’s impartial judgment.

The legislative frameworks and professional standards governing the role of lawyers guarantee the separation of these roles to insure the impartial collection and presentation of evidence. This preserves essential and sound ethical boundaries and safeguards intended to not only protect the defendant’s rights but also uphold principles of justice.

An attorney might have to step down from his position as counsel if he or she testifies to a fact in his or her case. While discussions between a lawyer and their client and, to a lesser extent, the clients’ “agents” might be confidential, the lawyer’s interviews with witnesses or other third parties are not.

If a lawyer has direct knowledge of non-privileged factual information, that lawyer may be forced to testify. This problem is expressly addressed in a lawyers code of ethics.

Colorado Rules of Professional Conduct – Rule 3.7. Lawyer as Witness

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

On the other hand, a criminal defense attorney and their investigator may collaborate to discuss potential avenues for further research into a case to develop a sound defense and to ensure that the evidence gathered is not only relevant and detailed but also admissible in legal proceedings.

The “Umbrella Of Confidentiality” That Covers A Criminal Defense Investigator

Another significant benefit of retaining an investigator is the “umbrella of confidentiality.” The attorney-client privilege, an essential element in maintaining the confidentiality and trust of the accused, is extended to a confidential investigator retained by the defense. This is like an umbrella of trust.

The confidentiality of the attorney-client privilege prevents the lawyer from disclosing any information the client shares without their consent. The same rule of law is applied to the investigator working for the defense. Attorneys or their investigators charged with breaching their secrecy obligations may face potential criminal sanctions, professional disciplinary action, or both.

Preserving Neutrality and Objectivity Of A Private Investigator

Keeping impartiality and objectivity during an investigation is one of the core tenets of a criminal defense investigator. Private investigators (PI’s) are instructed to objectively approach every case to find the truth regardless of their beliefs or preconceptions. This dedication to impartiality not only boosts their credibility if they later testify at trial, it maintains the integrity of their findings. The attorney’s job is to selectively decide what facts and evidence to use at trial in the development of the defense and in attacking the State’s case.

Criminal defense investigators carefully review every facet of a case, closely evaluate the prosecution’s evidence, and attempt to spot any flaws or contradictions in the State’s case. They must remain impartial to further thier commitment to objectivity.

But integrity does not mean limitations. The quest for justice means investigators sometimes operate in the shadows of a criminal case where they can sometimes find, gather, and preserve often ignored and crucial evidence, interview overlooked witnesses, and scrutinize every detail presented by the prosecution.. ensuring that the scales of justice are balanced with untainted facts and unbiased observations.

Sidebar: The Criminal Defense Investigator – The CSI “Effect” And Forensic Evidence In The 21st Century

We live in a “CSI world.” Jurors now seem to expect some form of forensic evidence in every case. One form is the recent introduction of “body cam video” – (please click on the link to read my recent article on this subject). But the public’s expectations do not end there. Finding and analyzing evidence and then applying one or more forensic sciences, sometimes by retaining additional experts, to examine and analyze that evidence is another essential task for private investigators.

Scientific challenges to the prosecution’s case can emerge after thoroughly reviewing the physical evidence in a criminal case. Cutting-edge methods for locating lost or overlooked evidence can eventually lead to breakthroughs in preparing a defense or later at trial. Forensic experts can be retained to refute the prosecution’s case and demonstrate the state’s well-known “confirmation bias.”

Investigative techniques can include the location of DNA, DNA analysis, toxicology, ballistics, and other forms of digital forensics. Forensic evidence, such as body cam, frequently can serve as the only impartial witness in a criminal case, “testifying” and supporting or contradicting other witness statements made during the trial.

The emergence of technology has fundamentally changed the way that defense evidence is obtained, examined, and presented in court and has significantly altering the field of criminal defense investigations.

Side Bar: Social Media

Social networking sites and online databases are also essential tools for creating timelines and tracing digital footprints. However, with all of these technical advancements, there are also difficulties, such as maintaining data integrity and understanding privacy regulations. Even though technology greatly enhances investigation skills, it also necessitates a greater degree of skill and ethical thought from experienced and sometimes very expensive criminal defense investigators and forensic experts.

Finally: The Cost Of A Private Investigator – Factors Affecting the Price of Hiring a Private Investigator for Criminal Activity in Colorado

Numerous variables affect the cost of hiring a criminal private investigator in Colorado, and each has a significant impact on the overall cost. The intricacy of the current situation is one crucial factor. Due to the extra time and resources required, investigations involving complex legal concerns or needing surveillance over large areas are typically more expensive.

The reputation and experience of the investigator can have a big influence on how much they charge; successful investigators with years of experience typically charge more.

The length of the inquiry is another consideration; lengthier investigations require more hours of effort, which raises expenses. Particular costs like travel miles, equipment usage, and any required permissions might also increase the money needed to hire an investigator in Colorado.

Colorado Criminal Private Investigators’ Average Hourly Rates

The complexity of the case, the private investigator’s experience, and their specific talents are just a few of the variables that affect how much it costs to hire a criminal private investigator in Colorado. Clients should anticipate paying an hourly cost that varies widely on average.

In Colorado, the majority of criminal private investigators bill between $70 and $120 per hour. However, for more complex situations requiring sophisticated surveillance methods or thorough background investigations, rates may move slightly above or toward the higher end of this range.

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.Summary and Conclusion – Colorado Criminal Law: Do I Need A Private Investigator?

A private investigator can strengthen a defendant’s case by carefully examining the State’s case and finding any holes or contradictions in the evidence. Then, he or she can collaborate with and discuss the investigation prospects of the case with a criminal defense trial attorney.

The task may be to confirm the evidence and information provided by the prosecutor and to expand on that investigation to acquire more specifics. It may be to conduct witness re-interviews and view, document, and further investigate the crime scene. The bottom line is that a private investigator offers a second look and a more thorough examination of the evidence and witnesses “discovered” by the defendant, strengthening the defendant’s case, and the defense attorney can concentrate on in and out of court strategies and procedures.

Colorado Criminal Law: Do I Need A Private Investigator?

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.