Investigating Criminal Charges before Trial

Every competent legal defense is grounded in hard evidence, whether witness testimony, forensics, or even expert testimony. For a defendant and their defense counsel, obtaining this evidence is crucial to mounting any reasonable defense in the court of law. There is the discovery period, where the prosecutor's office shares information with defendants, but a good defense requires further evidence, which may be harder to obtain. One of the difficult areas defendants and defense counsel face is obtaining testimonial evidence, or statements, from other parties involved in an alleged crime, which may even include the alleged victim of the crime. Clearly, some victims will feel intimidated by the reappearance of their alleged attacker, and even attempts to contact certain parties before trial may be construed as intimidation or conspiracy by the courts. For this reason, consulting an experienced criminal law attorney is essential to avoid incurring further criminal charges while attempting to build your criminal defense.

Interviewing the Prosecutor's Witnesses

A defendant, usually through their defense attorney, can ascertain statements and other information from individuals that the prosecutor intends to use as witnesses during trial. During the discover process, the prosecutor must provide the names and addresses of the individuals they intend to utilize as witnesses during trial, which gives the defense a clear indicator of who they should interview. However, the process of interviewing the prosecutor's witnesses, which may include the alleged victim of a crime, is not always possible in certain circumstances. Under no circumstances should a defendant conduct their own informal interviews or attempt to contact victims of a given crime, which may be viewed as intimidation, another crime, by the courts.

Some of the preeminent laws and policies concerning defense attorneys interviewing the prosecution's witnesses include:

  • Prosecutors cannot mandate their witnesses to not speak to defense attorneys; however, they can strongly suggest that an individual not do so. However, prosecutors have no legal right to withhold a willing witness from speaking with the defense's counsel.
  • Prosecution witnesses are also under no legal obligation to speak with the defense either, and if invasive measures are used to obtain an interview, more crimes may actually be committed. Some of the notable circumstances of forced interviews on the prosecution's witnesses occur during a deposition.
  • Depositions are not common in criminal law, however, some states, such as Florida and California, have laws in place allowing the defense to subpoena a potential witness for a legally required interview under oath.
  • The final option for defense attorneys to use to garner information from prosecutor's witnesses is through the services of a private investigator. While public defenders offices do have private investigators, the demand for services means they will not be solely tasked with investigating your case. In these instances, having private counsel and the ability to afford the dedicated services of a private investigator are beneficial to those that can afford to do so.

Although prosecutors are required to provide witness statements during the discovery period, it is not guaranteed these witness statements are accurate, complete, or even from a credible source. Investigating the source of information, fact checking, and even obtaining another statement from a witness may expose serious flaws or other discrepancies in a prosecutor's case.

Other Methods of Building Information for Your Criminal Defense Case

Aside from directly interviewing prosecutor's witnesses, whether via your attorney or a private investigator, there are other methods to build beneficial information before your criminal trial. Some of more commonly used approaches include:

  • Hiring independent medical examiners to review the scientific evidence and medical statements offered by the prosecutor's office
  • Collecting all existing public records and other documents concerning all aspects of your case, including the background of all parties involved, previous case precedents, and any other information that can be legally obtained
  • Filing subpoenas for information and documents from entities that are unwilling to provide the requested items. This may prove successful, or a judge can quash the subpoena on a number of grounds.
  • Return to the alleged crime scene and obtain further photographic evidence, new witness statements, and even, missed forensic evidence.
  • Take deposition statements from willing parties, as well as using private investigators to obtain information from other witnesses that may prove unwilling
  • Gather information and formulate a plan for an alternative sentence, which can be offered in lieu of incarceration, such as drug and alcohol treatment program stays for drug and DUI offenders
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