Investigation

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Background

Investigation is often the most critical stage of a case because it is this stage that determines the trial posture of the case going forward. The following suggestions may help you in the investigation of the relevant evidence:

  • Take prompt action
  • Begin the investigation as soon as possible.
  • If you delay investigating, you risk losing material evidence and witnesses can more easily recall recent events.

Guard against Risks

  • Conduct your investigation with a companion.
  • Get the signature of any person who provides evidence.
  • Tape-record the whole course of collecting evidence.
  • Valuable Sources of Information
  • Charge sheet/Police report on completion of investigation
  • First information report
  • Case diaries if accessible
  • Statement of witnesses made before the investigating officer10
  • Statements of the co-accused(s)
  • Client interview
  • Statement of eyewitnesses
  • MLC (Medic Legal Case Report)
  • Experts' conclusions
  • Visit the Scene of the Alleged Crime
  • If permitted and possible, visit the scene of the alleged crime as soon as possible.
  • Use sketches, charts, photos, videotapes, measurements, etc., to record evidence found at the scene.
  • Search for undiscovered evidence.
  • Confirm who could be defense witnesses and write down how to contact them in the future; and
  • Search for witnesses who have not been questioned by the police.

Witness Interview

  • Consider recording the witness interview with videotapes or cassette tapes.
  • Is the witness capable of providing testimony? A minor who lacks the ability to distinguish right from wrong, or a person who cannot clearly and correctly express himself, or understand and respond to questions cannot act as a witness. Someone considered insane or mentally handicapped, however, who is capable of understanding and responding to questions, is capable of being used as a witness.
  • If possible, interview the prosecution's witnesses.
  • Meet the eyewitnesses.
  • The interview should be conducted in a safe and comfortable environment.
  • Make a record of the witness's background and details of current employment.

Statements of the Witness and the Victim

  • Are there any videotape or cassette tape records of the statements made by the witness and the victim?
  • Did the witness and the victim themselves personally write their statements?
  • What motives do the witness and the victim have to provide testimony? Does the witness have any personal interests relating to the case?
  • Has the victim been injured? If so, has the victim provided detailed information relating to the degree of his injury?
  • What is the relationship between the victim and the accused? The witness and the accused? The witness and the victim?
  • Has the victim been compensated in any form? If so, when, how much and who paid the money?
  • What is the mental condition of the witness and the victim?
  • Is the witness' statement based upon the witness' and the victim's own firsthand observation or based upon hearsay?
  • Has the witness' and the victim's testimony been obtained in legal ways? Has the testimony been obtained through torture, coercion, inducement, deception or other illegal ways?
  • Is the witness' testimony consistent with the victim's testimony? If not, what are the contradictions? Are the inconsistencies helpful or harmful to the defense of the client?
  • Are the witness' and victim's testimonies consistent with the accused's statement? Are they consistent with the co-accused's statement? If not, what are the inconsistencies? Are the inconsistencies helpful or harmful to the defense of the client?

Material Evidence

  • How did the police obtain the material evidence?
  • Was the search warrant that the police used valid, was the warrant executed by the person listed on the warrant as entitled to carry out the search or arrest?
  • Is there a detailed list of all the seized articles? Do the listed articles match the material evidence gathered by the prosecution?
  • Is there any relevant material evidence?
  • Can more than one interpretation be applied to the evidence?
  • Is the collected evidence first-hand or second-hand evidence?
  • Is the evidence of a fragile or stable nature? If fragile, have proper steps been taken to preserve it?
  • Has the evidence undergone any changes due to the passage of time, changes in the environment or any other factors?
  • If evidence was obtained through photography or filming, were there at least two participants at work? Has the photographer or the videotape recorder made a complete record of the evidence?
  • Has the evidence been verified? Will the evidence used for the defense hold its ground at trial?


Crime Scene Investigation

Under normal circumstnaces, police or foresic scientists will conduct initial investigation at the crime scene. Criminal defense laywers should be familiar with the Overview of Crime Scene Investigation so that they can critically examine the prosecutor's case.

Documentary Evidence

  • Was the search warrant that the police used valid?
  • Is there a detailed list of all the seized documents? Are the listed documents consistent with the evidence gathered by the prosecution?
  • Is there relevant documentary evidence?
  • Are there different interpretations of these documents?
  • Are these documents genuine or fabricated? It is the responsibility of the defense to repudiate seemingly authentic documents and other evidence. If this is not possible, try to plant doubt about the authenticity of some evidence, where it seems appropriate.
  • Are the signatures and seals on the documents genuine and complete?
  • If the documentary evidence is a duplicate or photocopy, why has the original not been submitted as evidence? Have the duplicates or photocopies been made with at least two persons present? Does the person who duplicated or photocopied the documents have any interests related to the case? Are the duplicates or photocopies entirely identical to the original?
  • Have the duplicates or photocopies been verified as genuine?
  • If the police seized mail or telegraphs, were their procedures consistent with the requirement that a Chief judicial Magistrate or District Magistrate or higher make out the search warrant for such material? Has the post office examined and delivered the items? Is there a possibility that the seized mail or telegraph has been fabricated, altered, or replaced?

Expert Evaluation

  • Has the expert obtained judicial permission to conduct the evaluation?
  • What evidence has the expert examined?
  • What are the expert's fields of expertise?
  • How long has he been considered an expert in his field?
  • What are the expert's qualifications? Has he been authorized and does he have the credentials to be an expert evaluator?
  • Is the expert equal to the work of his own field? Are the expert's methods and techniques in accordance with the relevant national or professional standards? Has the expert used up-to-date technology to conduct his evaluation? Does the evaluation require the expert to cover subjects beyond his area of expertise or beyond the technical and evaluation capacity of the judicial expert examination apparatus?
  • Are the materials that are the foundation for the expert's conclusions sufficient and authentic? Are the materials suitable for evaluation or assessment, or do the materials conflict with the evaluation requirements?
  • Consider whether there is a need to advise the defense expert to independently verify the evidence.
  • Does the client have any physical or mental injuries that need an expert evaluation and technical explanation? If so, apply for the court to provide expert evaluation on the client's physical health or mental state. Provide the expert with the client's relevant medical records and biographical data.

Witness' Character Traits and the Scene of the Alleged Crime

  • When reviewing an eyewitness testimony, focus on the following aspects listed below. An understanding of the witness' character traits will help the lawyer narrow the range of investigation and identify the strengths and weaknesses of the witness' testimony. The items listed below affect how the witness might have observed facts of the case.
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