Engage an Investigator

Criminal Defense Cases

The following is an excerpt from an article by Vincent F. Rabil, Assistant Capital Defender – North Carolina.  The entire article can be reviewed via the following link.

http://ncids.org/Defender%20Training/2017NewFelonyDefender/DiscoveryInvestigationStrategies.pdf

STRATEGIES FOR DISCOVERY AND INVESTIGATION IN DEFENSE OF
FELONY CASES
A PRESENTATION TO NEW FELONY DEFENDERS TRAINING
UNC SCHOOL OF GOVERNMENT
CHAPEL HILL, N.C.
April 3, 2017
BY:
Vincent F. Rabil
Assistant Capital Defender
Office of the Capital Defender
Winston-Salem, N.C. 27120
Vincent.f.rabil@nccourts.org

Standard 4-4.1 Duty to Investigate and Engage Investigators
(a) Defense counsel has a duty to investigate in all cases, and to determine
whether there is a sufficient factual basis for criminal charges.
(b) The duty to investigate is not terminated by factors such as the
apparent force of the prosecution’s evidence, a client’s alleged admissions to
others of facts suggesting guilt, a client’s expressed desire to plead guilty or
that there should be no investigation or statements to defense counsel
supporting guilt.
(c) Defense counsel’s investigative efforts should commence promptly and
should explore appropriate avenues that reasonably might lead to information
relevant to the merits of the matter, consequences of the criminal proceedings,
and potential dispositions and penalties. Although the investigation will vary
depending on the circumstances, it should always be shaped by what is in the
client’s best interests, after consultation with the client. Defense counsel’s
investigation of the merits of the criminal charges should include efforts to secure
relevant information in the possession of the prosecution, law enforcement
authorities, and others, as well as independent investigation. Counsel’s
investigation should also include evaluation of the prosecution’s evidence
(including possible re-testing or re-evaluation of physical, forensic, and expert
evidence) and consideration of inconsistencies, potential avenues of impeachment
of prosecution witnesses, and other possible suspects and alternative theories that
the evidence may raise.
(d) Defense counsel should determine whether the client’s interests would be
served by engaging fact investigators, forensic, accounting or other experts, or
other professional witnesses such as sentencing specialists or social workers, and
if so, consider, in consultation with the client, whether to engage them. Counsel
should regularly re-evaluate the need for such services throughout the
representation.

6 State v. Ballard, 333 N.C. 515 (1993) – Sixth Amendment right to assistance of counsel entitles the defendant
to apply ex parte for appointment of expert. An indigent defendant is entitled to any form of expert
assistance necessary to his or her defense, not just the assistance of a psychiatrist.
7
(e) If the client lacks sufficient resources to pay for necessary investigation,
counsel should seek resources from the court, the government, or
donors. Application to the court should be made ex parte if appropriate to
protect the client’s confidentiality.7 Publicly funded defense offices should
advocate for resources sufficient to fund such investigative expert services on a
regular basis. If adequate investigative funding is not provided, counsel may
advise the court that the lack of resources for investigation may render legal
representation ineffective.

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