Disclaimer: The following questions and answers deal with general investigative questions and how they may apply to mock situations. Although these answers discuss common issues, they may or may not be applicable to your case’s particular set of facts. The answers should not be taken as, nor are they offered as legal advice. Careful consultation with an attorney and/or an investigator is highly recommended prior to acting on any of the below. The questions and answers are protected by copyright and reproduction is strictly prohibited without permission from Bearden Investigative Agency, Inc.
You can hire an investigator without an attorney, but doing so may create additional liability. In Texas, and other states as well, employing a defense attorney under the correct relationship will allow the investigator’s investigation, reports, findings and evidence to remain confidential under the attorney-work product and the attorney-client communication privilege doctrine. Such a confidentiality claim is critical in cases where the investigator is investigating claims of wrongdoing.
Under regulatory law, investigators may have duties to report past crimes to certain authorities. Many times, that duty is nullified when an attorney exists and the privilege is claimed. The first step in conducting any criminal defense investigation is to retain counsel.
We have worked with hundreds of attorneys and can recommend a competent attorney in your area if you do not have one.
It is critical that you retain legal counsel immediately. Although federal agencies do work together, which is the whole concept of a task force, they may conduct investigations differently. For instance, if an IRS agent arrives to talk to you at your home or office, without any letter or forewarning, it is very likely that these are IRS special agents. They are likely not there for civil matter investigations, but for criminal matters.
On the other hand, FBI agent interviews can be more common. Federal agents, the FBI in particular, will conduct interviews in pairs of two. The purpose of this is to have an individual testify to what was said in an interview. More concerning, the government may prosecute you for any false statement they believe you have made to a federal agent.
Again, it is highly advisable to retain counsel and discuss whether to participate in an interview.
Actually, yes. When a court finds upon an ex parte motion by a defense attorney that the need for a private investigator exists, the court may order an appointment of an investigator. Generally, this may be necessary to insure that a defendant receives his/her rights to effective assistance of counsel and rights of due process and due course of law as guaranteed by the Constitution. The local courts usually have rules dealing with these appointments, which are common in Texas and in the federal system.
Yes. As part of normal discovery, your lawyer will receive the documents, statements and investigative findings from the prosecuting attorney. Although these items are a good starting place, they may leave out critical pieces of evidence such as unfound witnesses, inconsistencies or untested evidence. Part of the purpose of hiring an investigator is to thoroughly review, organize and scrutinize the evidence that has been provided and prepare from day one its presentation to a jury.
Probably. Every case is fact specific. Hiring an investigator to minimize your liability may be worthwhile, and could help you avoid a jury trial.
Part of any investigation includes uncovering facts that may provide for mitigation. In addition, the slight change of a material fact may have great impact on the charging offense or the expected punishment. Even where guilt may be ironclad, an investigation may assist in fitting the appropriate punishment with the appropriate offense.
Although dependent on the statute, most regulatory law requires some finding of fraud, retaliation, misappropriation or deceit. By their very nature, they require a judge, jury or fact-finder to consider all of the surrounding facts in any given transaction or situation.
The definition of whether a company, officer, manager or other employee violated the law can be both subjective and objective. Nailing down detailed facts from witness interviews, background materials and through forensic analysis can make the difference in the ultimate outcome. It is critical to begin uncovering facts that support your defense or claim from day one of the accusation.
In addition, in the corporate context, the existence of an internal investigation shows an attempt by management to affirmatively deal with the bad actors. Many times, the existence of an investigation may help mitigate the ultimate punishment.