The Secret Lives of Private Eyes

When I was 14 I wanted to be a private investigator. I had watched television shows about them — Simon & Simon; Rockford Magnum, P.I. — and it was clear from my research that this was an exciting job with shootouts, fistfights, sexy women, and fast cars. The P.I.s on television weren't like the adults I knew: They were sardonic; they charmed information out of people; they picked locks. P.I.s were on the right side of the law, but just barely.

After graduating high school my P.I. fantasy was replaced with others, and more than 20 years passed before an attorney friend of mine asked me to do some criminal defense investigation work for him. Suddenly I had a new job. One day I was the facilities manager at a small acupuncture college; the next I was a licensed investigator with several incarcerated clients to interview.

My new job quickly dispelled any romantic notions I had about private eyes. For one thing, the police frown upon people picking the locks of homes they do not own: it's called criminal trespass, and possibly burglary. The things that Thomas Magnum did on a typical case (assault, intimidation, unlawful discharge of a firearm) would put him away for two to six years in a medium security facility, where good-looking men like Magnum are in high demand. Also, after three years as a P.I., I have yet to be involved in a fistfight, my car is still a 7-year-old Chevy, and I don't even own a gun. Sexy women? Have you ever seen a 50-year-old assistant D.A?

In reality, most of the hours in a private investigator’s life are spent sitting in cars, talking to people, and typing. These are the workday activities of a newspaper reporter, social worker, public health nurse, and, for that matter, a cab driver writing a pornographic novel. Unlike fictional P.I.s, real private dicks, gumshoes, and shamuses are not loners enforcing a moral code; they are something akin to a 19th-century English parson, traveling the countryside attending to people.

In other words, real P.I.s listen. In fact, listening has turned out to be my most important job skill, and today I view private investigators not as violent and sarcastic but as bearing witness to other people’s life stories.

Like cops and social workers, private eyes are involved in people’s lives at unusual times. P.I.s knock on your door, talk to you about some personal aspect of your life, then disappear. P.I.s are momentary representations of a communal authority — not quite cop, not quite priest. People talk to investigators probably because they know they will never see the investigator again. This is why the best P.I.s are the best listeners, the ones who make a person feel like the most fascinating and important individual in the world.

Sometimes this simply means hearing a baffled and overwhelmed defendant complain about the poor choices he has made, or about his desire to clean up for the sake of his child, or about how the other guy had it coming. Sometimes it means something else, a choice to be made about getting involved.

I once took a job locating somebody’s birth daughter. The man was 35 and had gotten his girlfriend pregnant while in college, and then panicked. His girlfriend gave the child up for adoption and my client ran off and tried to ignore the guilt until he couldn’t anymore. When he contacted me, he wanted to apologize to his ex-girlfriend and make himself available to his birth daughter, should she want to contact him. This was a man in a lot of pain, trying to atone for his past actions. When neither his ex-girlfriend nor his daughter wanted to speak to him, he wept over the phone and asked me what to do.

I thought: “How the hell should I know? I’m not a therapist.”

But by that time I had figured out that being an investigator is almost like being a therapist. We both listen to people’s secrets. In this case, I did what seemed to be common sense.

“Write them each an apology,” I advised. “I’ll forward the letters for you. They can contact you when they’re ready.”

That time I knew what to do. Most of the time, when I hear heart-wrenching tales, I’m not so sure. We are all the stars of our own stories, and all of our subjective realities bang and collide against each other all day, every day, like atoms in a particle accelerator, sometimes leading to atomic bombs and sometimes to elegant theories of existence. Our justice system is supposed to pick through all these colliding atomic storylines and choose the parts that seem most accurate, and it is private investigators who play the part of the white-coated lab technicians, observing each swiftly-moving particle of story told by each self-interested individual.

This can be confusing. I had one case where the victim claimed that my client burst into his apartment alone, ski-masked and armed to the teeth, while my client described visiting the apartment with a friend to buy some stolen stereo equipment, being welcomed inside and offered snacks while the stereo was brought downstairs. Most of the time the difference between the accounts is less dramatic: somebody stood here instead of there, somebody said this instead of that, X threw the first punch, Y threw the first punch. People talk about the incident I’m investigating and when they are done, they keep talking about other things which they feel the need to tell somebody about. A good investigator listens because he or she might hear something useful, and people keep talking because somebody is listening.

In P.I. fiction, investigators seek out hidden truths — Phillip Marlowe uncovered the tragic lives of wealthy families in Southern California; Sam Spade exposed sentimentality and corruption. Real investigators, by listening, uncover the mess of contradictions that make up real life.

On one of my first cases, I drove to a small rural town where a witness was known to have worked at a pizza restaurant. She was no longer employed there, but a waitress described her brother’s house to me. I found it at the beginning of a muddy road, and when he answered the door, began to explain who I was and why I was seeking his sister.

The brother said that he hadn’t seen his sister in a while, and that they weren’t that close. He went on to say that I might try calling their mother in Montana, and gave me her phone number. As he wrote down her information he kept talking—about his sister and himself, about how they were both no good, how they were fuck-ups, and how their mother had moved to Montana because she wanted to clean up her own life.

He handed me his mom’s information, and while looking at the floor, said that he hadn’t seen or talked to her in over a year.

“So if you call her,” he said, “would you mind just telling her that…that Billy loves her?”

I walked away with that scrap of paper in my pocket wondering what to do. I had promised Billy that I would pass on the message if I called his mom, and now I found myself hoping that I didn’t have to call her. Playing Dr. Phil in a family crisis was not what I signed up for when I got my investigator’s license. And what good would it do anyway? Love can’t be given through proxy. No, Billy’s problems were like those of most of my clients — intractable and unsolvable, at least by me.

Most of my clients are addicted to drugs or alcohol. Most of my clients come from fatherless homes, live in poverty, have little education and lousy jobs. A 15-year-old boy I once had as a client dropped out of high school and sold marijuana to pay for food for his girlfriend and their baby while his mom was in California picking strawberries. He was accused of attempted murder after a drug deal went south. The girlfriend of a severely paranoid client wept when she told me that she wanted him to come home, even though my client had held a loaded pistol to her forehead because he believed that she was part of a joint Mafia-F.B.I. plot to kill him. A current client, accused of rape, likely has an organic brain disorder and cannot understand why he is in jail. He’s also clinically depressed because his ex-wife shot their son.

These people have problems that I cannot begin to address. I can act as their investigator. I can make sure that they are accused of the right crimes, that the witnesses saw what the D.A. says they saw, and I can double check all the facts and photograph the scene and examine the physical evidence. Sometimes I can find a useful witness the cops weren’t aware of, and every once in a while I can save an innocent person from spending time behind bars. But my clients’ crimes are just symptoms of their real problems, and with those I can’t help. All I can do is listen. Hopefully, sometimes, that’s enough. 

-Steve Wilson



The Essence of P.I. Ethics

As licensed private investigators we have our own ethical codes, typically laid out by our state PI association and by the governing body that issues investigation licenses. But  for those of us who primarily work for attorneys doing criminal defense or civil work, we also need to consider the ethics of attorneys.

This is because many states' professional bars rules of conduct say that attorneys are responsible (to varying degrees) for the actions of their employees. This is most clearly stated in the well-known rule(s) prohibiting an attorney from contacting a party represented by another attorney. Combined with the rule that attorneys cannot evade responsibility by instructing non-attorney agents to take actions they are not allowed to take, means that investigators also cannot contact individuals represented by other attorneys.

Naturally there is a lot of overlap between the professional ethics of private investigators and those of attorneys. We are going to distill those shared ethical concerns into four highlights: 

1. Conflict Of Interest

2. Confidentiality

3. Acting Lawfully

4. Performing Services Within Your Competence


Let's look at them one by one.


CONFLICT OF INTEREST

Conflict of interest—shared with attorneys and other professions–means that you cannot serve two masters at the same time. If you are hired to work on a case, you represent the business or individual and you must align yourself with them. You can’t also work for the opposing side, you can’t look for personal gain, you can’t represent a company if your spouse works for a competing company. All of these situations may force you to decide between competing desires or points of view, making it difficult to keep yourself cleanly aligned with your client.


CONFIDENTIALITY

Working in the legal professions means that we often learn information that isn’t publicly available. It may be information directly related to our case or it may be information unrelated to the case. Either way, if we learn it in a confidential setting, we can't divulge without the client's permission. 


ACTING LAWFULLY

While this should be obvious and easy to follow, a quick check of ethics violations in several states reveals that breaking the law is the most common form of ethics violations among private investigators. In their attempts to learn information, investigators can easily slip over the line into illegal activity, especially in cases when the law is unclear or applies differently to law enforcement officers than it does to private citizens.


PERFORMING SERVICES WITHIN YOUR COMPETENCE

Such a long title for such a simple concept: Don't lie about your experience or exaggerate what you can do.  The primary ethical issue of performing services within your competence is one of consumer protection. The person who hires you, whether it’s an individual or a law firm or a government entity, has the right to an honest evaluation of your abilities. If we look at other industries, you would want to know if the mechanic working on your Toyota has 20 years experience on Japanese cars or if they just finished a class on repairing outboard motors. 


Nearly all ethical considerations that private investigators run into can be resolved by considering these four ethical categories. By combining private investigator ethics with the ethics of lawyers, legal investigators can be sure they are working on solid ground, building a good reputation, and staying out of trouble. 



Writing The Investigative Report

Being a good defense investigator involves many skills—skip-tracing, interviewing, record searching, creative thinking, public speaking—but demonstrating those skills almost always comes down to your written report. The report you write is far more than a summary of your conversation with a witness, it is a timeless document that lays plain your abilities on paper. Your ability to think, your ability to connect with the witness, your knowledge of the case, your education—all is on display in your report.

One of the biggest mistakes an investigator can make is to treat report writing as an unfortunate task. Formal reports are the culmination of your work and are the best calling card you can ever have. A well-written report that is used in a trial will be read by the defense attorney, the prosecutor, the judge, appellate attorneys, post-conviction attorneys, federal habeas attorneys, and on and on. Lawyers, whose entire livelihood depends on parsing the written language of the law down to its bones, love to work with investigators who can write clearly and accurately. You make their job easier, and if you do that, you get more work.

Written investigation reports produced by your office should be consistent in look, language, and structure. Regardless of whether your office has one employee or twenty, reports coming from your office should look and read the same. This means deciding on issues such as tense and voice, the use of quotations, and the inclusion of the investigator in the report.

Your counterparts, police detectives, have been taught since police academy the appropriate way to write a report for their file. Police reports are designed to be consistent within a jurisdiction. So, for example, all the reports written by the hundreds of police officers of the Los Angeles Police Department should sound more or less the same. To achieve this, police reports rely on a lot of stock phrases and follow specific rules on report writing. A defense report also has rules, but different rules, because a defense report performs a different purpose than a police report.

The purpose of the police report is to support the actions of the officer and the law enforcement agency for which they work while simultaneously using language and terminology designed to put emotional distance between the facts in the report and the reader. A perfect law enforcement report accurately describes the officer’s actions and the witness’s statement in an impersonal tone. The police report represents the law enforcement agency, not the officer.

Defense reports can be less formal and more personal and vary from investigator to investigator. Even a single investigator’s reports will vary slightly from attorney to attorney, since each attorney has their own interpretation of discovery rules, and their own comfort level when dealing with information that may not be beneficial to the defendant. For example, some attorneys may feel comfortable with a report in which you quote a witness describing your client threatening the victim the day before the assault took place. Other attorneys will want to know that information over the telephone but will not even want you to write it down in your notes. Some attorneys want just the facts. Others want your impressions and feelings about the witness.

But even with some adaptations for individual attorneys, the essence of your reports should stay the same. If you choose to include yourself in a report, you should always include yourself. If you embed photos, always embed photos. It makes your life easier as a writer and it provides a familiar product for your attorneys. 



The Defense Investigator

The U.S. Constitution guarantees all citizens the right to a speedy trial by a jury of their peers. Over the years, this simple statement has been expanded to mean that if you are arrested in the U.S., you have the right to an attorney, and if you have no money, the state or federal government (depending on the charges and jurisdiction) will supply one for you.

The attorney who represents the accused must challenge the prosecutor’s case. Often, defense attorneys meet with clients who admit their guilt. In that case, the primary job of the defense attorney is to make sure that the prosecutor does not misrepresent the charges in court, or otherwise fail to treat the defendant fairly. Other times, the defendant claims to be not guilty of the charges, or claims that while he or she is guilty, there were extenuating circumstances. In those cases, the defense attorney may ask for the help of an investigator to look for facts that support the defendant’s statements.

Enter the defense investigator.

Laws and other regulations regarding investigators vary from state to state, but typically defense investigators are licensed private investigators who specialize in criminal defense work. Sometimes they are government employees working for a state or municipal public defense system. Sometimes they are privately employed, either part of a large investigation company or sole practitioners, who work on a government contract as de facto public defenders. Less often they work solely for privately-retained attorneys—the famous defense attorneys who represent wealthy people in trouble. The pay range can vary greatly. While municipal public defense investigators may make little more than minimum wage, working for a privately-retained attorney can be fairly lucrative.

Defense investigators share many similarities with police detectives but their purpose is very different.  If police work is the work of construction, then defense work is the work of inspection. Police detectives gather facts to try and prove a defendant’s guilt. Defense investigators review the police work, find fiaws with the theories, reasoning, analysis, techniques, and facts of the case made by law enforcement.

Often defense investigators do their own construction of an alternate case theory as well. Abstractly, defense investigators are helping to make sure that the defendant’s civil rights are being upheld. If there was no means for a vigorous defense in our criminal justice system, unscrupulous police officers and corrupt prosecutors could throw people in jail simply because they didn’t like them, to gain favor with people in power, or for any prejudicial reason one can imagine.

Sometimes, police arrest the wrong person, and those cases are the most fun to work, proving that somebody is innocent. But most of the time, the job of the defense investigator is to keep the police and the prosecutors honest.

Job requirements vary from state to state. Useful education and work experience includes the fields of paralegal work, journalism, social work, and criminal justice. Many police officers retire to become defense investigators. Their background provides them with many useful skills for defense investigation: experience interviewing people, familiarity with the law, comfort in entering new and unusual situations, report writing. On the other hand, the perspective of a cop can sometimes detract from their work. It can be hard to shift from one side of the courtroom to the other.

The true client of the defense investigator is the accused individual, as investigators are considered to be extensions of the defense attorney. But the practical reality is that defense investigators work for attorneys. The attorney asks the investigator to work on the case, usually tells the investigator what he or she would like done, and is in regular contact with the investigator to learn what facts have or have not been verified. The investigator is the eyes and ears of the attorney in the street, collecting useful information that the attorney will use in court. 



Useful Links

Websites for Professional Legal Investigators

  • Federal Defender Training

    The U.S. Federal Defender's Office is a great resource for continuing education. Although many of the courses or seminars are aimed at attorneys, there are plenty of crossover trainings and investigator-specific trainings. Link: https://www.fd.org/

  • National Defense Investigators Association

    The National Defender Investigator Association (NDIA) is the only national organization to represent a constituency dedicated solely to the investigative arm of indigent defense. Lots of training programs and a great way to meet your peers. Link: https://www.ndia.net/

  • FOIA

    The Freedom of Information Act is the complicated, slow, but necessary public records law of the land. An essential tool for legal investigators. Link: https://www.justice.gov/ag/oag-freedom-information-act

Useful Links For Alabama Private Investigators

  • Open Govt Guide to Alabama Public records

    Written for reporters, this is a thorough and very helpful guide to navigating Alabama's Public record's law. Link: https://www.rcfp.org/open-government-guide/alabama/

  • Alabama Trial Court Records

    Access Alabama circuit court records online. Link: https://pa.alacourt.com/default.aspx?loc=alacourt.gov

  • Alabama PI License Renewal

    Everything you need to know to renew your P.I. License. Link: https://www.apib.alabama.gov/PDF/2016/RenewalInfo2-11-16.pdf

Useful Links For Iowa Private Investigators

  • Guide to Iowa Public Records Laws

    Open Government Guide to Requesting Public Records in Iowa. Invaluable! Link: https://www.rcfp.org/open-government-guide/iowa/

  • Iowa Court Records Online

    Link: https://www.iowacourts.state.ia.us/ESAWebApp/SelectFrame

  • Iowa P.I. License Renewal

    Link: https://iowadps.imagetrendlicense.com/lms/public/portal#/login

The Differences Between State and Federal Judicial System: A Short Guide for Private Investigators

While the federal and state judicial systems emerged from the same judicial framework, the two have distinct sets of laws and sometimes have significant differences in the way a criminal case is managed. For example, while federal law is applied identically (in theory) regardless of which state the court resides, individual state laws can vary dramatically. Also, state and federal laws do not always agree. We have seen this recently with the sale of cannabis products. In 2018, one could legally purchase marijuana for medical (but not recreational) use in California, drive across the border to legally purchase marijuana for recreational use in Oregon, then drive across another border into Idaho, where possession of any kind of marijuana is illegal (as it is in federal law).

The federal government has a single court system and set of rules while all 50 states have their own court system and set of rules for handling criminal cases. Here are a few examples of differences between the state and federal criminal processes:

  • Titles of people involved – State cases are brought by prosecutors or district attorneys; federal cases are brought by United States Attorneys. State court trial judges have a range of titles, but federal judges are called district court judges. 
  • Federal magistrate judges are used in federal cases to hear initial matters (such as pre-trial motions), but they do not usually decide cases.
  • The use of grand juries to charge defendants is not required by all states, but it is a requirement in federal felony cases unless the defendant waives the grand jury indictment.
  • States and the federal government have laws making certain acts illegal, and each jurisdiction is responsible for setting punishments for committing those crimes. A state may punish a certain crime more harshly than the federal government (or vice versa), but a defendant can be charged and convicted under both systems.

The federal rules for criminal cases can be found in the Federal Rules of Criminal Procedure, which govern all aspects of criminal trials. Each state has its own similar rules called the criminal statutes or the criminal code.

The steps you will find below are not exhaustive. Some cases will be much simpler, and others will include many more steps. As an investigator, you should be aware of the peculiarities of your state’s criminal process. However, most since American law all grows from the same seed, the following steps are typically observed in all jurisdictions.

Typical steps in the criminal process:

1. Investigation

2. Charging

3. Initial Hearing/Arraignment

4. Discovery

5. Plea Bargaining

6. Preliminary Hearing

7. Pre-Trial Motions

8. Trial

9. Post-Trial Motions

10. Sentencing

11. Appeal and Post-Conviction Relief

12. Imprisonment and Probation


The biggest difference between the federal and state judicial systems is not defined in laws or rules of legal procedure.  The biggest difference is money. The federal government has far more money to spend on the investigation and prosecution of criminal cases than do the states. The federal government has more law enforcement agencies and can spend more time and use more sophisticated intelligence-gathering techniques than can local police and sheriff 's departments. 

The discrepancy in funding is one major reason for the big differences in conviction rates between state and federal criminal cases as well as different strategies used by defense attorneys and defense investigators. More than 90 percent of individuals prosecuted in federal courts are convicted. Some estimates place the conviction rate at over 99 percent. 

Meanwhile, state conviction rates vary greatly, from approximately 84 percent in Texas to 59 percent in Florida. 

Because of these differences, private investigators working on federal criminal case tend to put more time and energy into the sentencing side of the case rather than pushing back against the facts. In state cases, that equation is usually flipped since the work done by local police departments is usually more flawed and open to attack by an aggressive factual defense. 


Useful Links for Kansas Private Investigators

  • Guide to Kansas Public Records Laws

    Open Government Guide to Requesting Public Records in Kansas. Link: https://www.rcfp.org/open-government-guide/kansas-2/

  • Kansas Court Records Online

    Link: https://www.rcfp.org/open-government-guide/kansas-2/

  • Kansas P.I. License Renewal

    Link: https://ag.ks.gov/docs/default-source/forms/pi-application---private-detective-renewal-application-8-2012.pdf?sfvrsn=4e0e3c2a_8

Useful Links for Kentucky Private Investigators

  • Guide to Kentucky's Public Records Laws

    Open Government Guide to Requesting Public Records in Kansas. Link: https://www.rcfp.org/open-government-guide/kentucky/

  • Kentucky Court Records Online

    Link: https://kcoj.kycourts.net/kyecourts/login/guestlogin

  • Kentucky P.I. License Renewal

    Link: https://oop.ky.gov/DPLServices/Login.aspx

Useful Links for Oklahoma Private Investigators

  • Guide to Oklahoma's Public Records Laws

    Open Government Guide to Oklahoma's Public Records Laws. Link: https://www.rcfp.org/open-government-guide/oklahoma/

  • Oklahoma Court Records Online

    Link: https://www.oscn.net/dockets/search.aspx

  • Oklahoma P.I. License Renewal

    Link: https://www.ok.gov/cleet/documents/Renewal%20App%202.0%20Fillable.pdf

Useful Links for Oregon Private Investigators

  • Guide to Oregon's Public Records Laws

    Open Government guide to Oregon's public records laws. Link: https://www.rcfp.org/open-government-guide/oregon/

  • Oregon Court Records Online

    Link: https://publicaccess.courts.oregon.gov/PublicAccessLogin/Login.aspx

  • Oregon P.I. License Renewal

    Link: https://www.oregon.gov/dpsst/PI/Pages/Renew.aspx