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The Criminal Defense Investigator’s Adversarial Role!

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Often times I am asked if it bothers me that “I help to put criminals back on the street”? I get asked this questions in various forms, sometimes “harshly”, sometimes in intelligent debate and/or conversation. I understand that this question is usually a “non-malicious question”; yet I can’t seem to get over the implications that this question makes about the person asking it….

First; let us consider this question: “does it bother you that you help put criminals back on the street”? When you consider this question carefully you can only assume that the person asking this question believes that the defendant in a criminal case is guilty before he or she has ever had their day in court. The logic of this question is that if I work a case as a Criminal Defense Investigator; for a Defendant that is accused of a crime, I am assisting a guilty person in trying to get away with this crime. So; when you think about the person asking the question, you begin to see a person that does not seem to believe in the presumption of innocence, the concept of “innocent until proven guilty”, and the practice of giving a person accused of a crime due process. Of course that person’s views would change considerably if that person was charged with a crime.  The correct philosophy in our current Judicial system is that a person accused and charged with a crime is completely innocent of said crime until they are convicted in a court of law; or at least that is supposed to be the way criminals cases are viewed by our current Judicial System…….. Yes; the questions we ask can often tell much about us….

Second; I think it is important to get into the process of Justice. Our Justice System is designed to be adversarial; the Prosecution and the Defense are adversaries in criminal cases. Both sides are supposed to work hard to prove their opposing theories in a criminal case. Both sides will use various tools that are at their disposal; Investigators, Expert Witnesses, Technology, etc., etc. in trying to prove their case. The hopes are that through this adversarial process, and the hard work that both sides have to do in this adversarial process, the truth will come out; and justice can be served.

Third; I think it is important to define the role of the Criminal Defense Investigator. In a criminal case the Criminal Defense Investigator first and foremost must remain dispassionate, and emotionally detached from the case; no good can come from a biased Investigator in a criminal case. It is important to remember that the quest is for truth and justice, not for a “win”. The Criminal Defense Investigator will assist the Defense Attorney in building his or her case by gathering evidence that will allow the Defense Attorney to accurately assess and evaluate their case. The Criminal Defense Investigator knows that he or she is simply a “tool” that the Defense Attorney has chosen to use in a very delicate process, with very serious consequences. So, it is imperative for the Criminal Defense Investigator to be dispassionate, emotionally detached, and yet also able take his or her job VERY seriously.

Having made these three points, I want to answer the question we are confronting here very bluntly. “Does it bother you that you help put criminals back on the street”? My answer is a resounding NO! Because in a criminal case without a fair process, where the rules and protocols are not strictly adhered to; there is no justice. Even if one guilty man goes free due to poor, inadequate, or dishonest work on behalf of the Prosecution it is the lesser of two evils when you consider that the alternative threatens the very fabric of a fair and impartial Justice System (the term “Prosecution” in this article includes the Investigators, Expert Witnesses, and anyone else working on the side of the Prosecution). The long term effect of the adversarial system used in our current Judicial System is that everybody gets better at their jobs; good Defense Attorneys challenge Prosecutors to be better and vise versa; good Criminal Defense Investigators challenge Law Enforcement Investigators to be better Investigators and vise versa.  I should also mention that I believe it is better to let one hundred guilty people go free than it is to imprison just one innocent man. We can always bring a person to court, but we can never get the years back that an innocent person spends in prison.


Written by Rick Gurley

June 28, 2009 at 9:56 AM

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