FUNDAMENTALS OF CRIMINAL INVESTIGATION By Charles M. Alifano, Worldwide Law Enforcement Consulting Group, Inc What is a criminal investigation?

In order to effectively conduct or perform criminal investigative functions, one must understand the basic definition of; investigation and investigate. An investigation is an examination, a study, a survey and a research of facts and/or circumstances, situations, incidents and scenarios, either related or not, for the purpose of rendering a conclusion of proof. When one investigates, he/she makes a systematic inquiry, closely analyzes and inspects while dissecting and scrutinizing information. An investigation, therefore, is based upon a complete and whole evaluation and not conjecture, speculation or supposition. Is it really that simple and straight forward for the criminal investigator? Is it so clearly defined or so black and white? Law Enforcement, the entity charged with the responsibility to accurately close the gap between fact and fiction, detect and prevent criminal acts; and in doing so are mandated to function within strict administrative and legal parameters. It is true that one must understand the basic definitions, however, the scope of the criminal investigator reaches far beyond that of mere definitions. Crime detection and investigation is both an art and a science; a collaboration of common sense, judgment, intellect, experience and an innate intuitiveness along with a grasp of relative technical knowledge. The criminal investigator must continually apply those skills, acquired through study and experience, to the examination and observation of the criminal and his behavior, as well as his social and physical environment. When the most basic of Law Enforcement functions: the preservation of life, the protection of property and the maintenance of peace, are not substantially realized, the investigative process must then be undertaken. The aim of this process is two fold; first, the investigator will attempt to identify and safely apprehend the violator and secondly, produce him/her before a proper court of law. Of course there is much going on behind the scenes, so to speak, while attempting to achieve these not so simple objectives; identification, apprehension and prosecution. Criminal investigations are conducted primarily for the prevention of crimes. When crimes occur, Law Enforcement is responsible to the community it serves and must discharge its duty by immediately investigating such incidents. Ideally the investigation will cause the violator to appear before a court so as to answer for his/her behavior. Ultimately and probably most important, is that the investigation, detection and apprehension of the criminal, effectually serves to curtail recidivism thereby reducing overall crime. There are several basic types of investigations that Law Enforcement personnel may undertake in the routine discharge of their duties: Investigations of incidents, which are violations of laws and/or ordinances that include; criminal acts (robbery, assaults, larceny, burglary, murder, illegal weapons, etc) and traffic accident investigations (serious injuries, likely to die, property damage). Personnel investigations into the background, character and suitability of persons in an effort to determine their eligibility for positions of public trust. Investigations of illegal conditions or circumstances, which if left unchecked would cause an increase in traditional crimes. These conditions may include the following: narcotics sales, illegal weapons trafficking, vice type crimes (prostitution, gambling), street gang activity, organized crime, terrorist front activities, fraud and con games, identity theft and computer crimes. Although many of these conditions would dictate self-initiated investigations based upon intelligence rather than reacting to a citizen crime complaint, there are however, times that investigations will in fact result from such individual crime complaints.

What does the investigator attempt to obtain during his/her investigation? The answer is information. What does the investigator hope to develop as a result of obtaining or gathering this information? The answer is evidence. All investigations, regardless of purpose, involve the task of gathering and evaluating information. The investigative process should be viewed in terms of gathering information, rather than attempting to obtain evidence. This is not to say that an investigator should overlook obvious items of evidence or items that can potentially become evidentiary in nature. The process should be conducted with the mindset that from information comes evidence. It is important to point out that the information that forms the basis for evidence that is ultimately presented during court proceedings represents only a small fraction of the total information gathered during the investigative process. The information gathered is subjected to intense scrutiny before it ever reaches a courtroom via examination, evaluation and screening. This scrutiny takes place at several levels during various stages of review: at the Law Enforcement stage, usually by ascending supervisory ranks within the investigative infrastructure and, depending upon the seriousness or news worthiness of the incident, the administrative echelon; this is in addition to the prosecution stage which includes the initial writing of the complaint, the arraignment process through grand jury proceedings and pre-trail hearings up to and during the actual trail. Much of the evidence gathered by Law Enforcement investigators is not acceptable for presentation in court due to the rules of evidence. This, however, does not preclude these pieces of information from assisting the investigator insofar as guiding him/her toward what will be acceptable evidence; all information possesses some degree of value. There are two primary sources of information: people and things. These are so different that the process of gathering and evaluating each type requires specific knowledge and skills. Basically, the criminal field investigator engages the human element: all of the emotional, psychological, environmental, and sociological aspects of human behavior. The crime scene technician/investigator or the laboratory based scientist deals with inanimate objects that are unable to mislead, lie or fight. The tasks of the criminal field investigator and the technician are closely related and somewhat dependent upon one another insofar as that each participant must have a fundamental appreciation of one anothers duties and responsibilities. Although these tasks are functionally related, they are in fact different in and of themselves and thereby necessitate the capability of distinct skills, disciplines and techniques. This is not to say that one task is more important or more difficult than the other. The investigator must be cognizant of the limitations and capabilities of the crime lab and its technicians, as well as accepted protocols, in order to properly process potential evidence. The investigator, while submitting physical things to the crime lab for examination, does not forfeit the responsibility and duty of attaining an expertise in the recognition, collection and preservation of physical evidence. The extent and value of information obtained from physical items examined, greatly depends upon the ability of the investigator at a particular scene to recognize potential evidentiary matter. It should be noted, that when comparing the value of information obtained from physical items versus information derived from people, the courts have historically established that information obtained from physical items usually reflects a higher evidentiary value. The criminal investigator should always remember that physical evidence cannot lie, it is not affected by emotions and it cannot be impeached.

The criminal investigator must continually be aware of the Theory of Transfer; when two objects meet, some effect of that meeting can be established and verified at a later time. An awareness and understanding of this theory will help the criminal investigator navigate the sometimes complex investigative process and hopefully curtail and/or prevent the inadvertent destruction or the failure to recognize and preserve evidentiary materials. This contact between objects includes people, things or a combination of such. For instance, consider the following basic examples: as a result of an automobile collision; the transfer of paint, broken glass, metallic or plastic particles, or rubber, to another automobile and/or a pedestrian or vehicle passenger; as a result of an assault; a weapon that makes physical contact with a person transferring blood, hair, skin or clothing fibers to the weapon and/or the perpetrator, or the shape (impression) of the instrument used as a weapon, left on an object or person struck. The possibilities are potentially endless and can be as simple as merely, unwittingly, walking through a crime scene. When an object or person; an investigator, a victim, a perpetrator or a witness enters a crime scene, something is brought into the scene and something is removed or taken away from the scene. Since investigation is the process by which one seeks and ultimately (hopefully) finds answers to the questions; when, where, who, what, how and why (NEOTWY), and knowing that information is the key that unlocks those answers, it is incumbent upon the criminal investigator to constantly recognize, develop and maintain current productive sources of information. The criminal investigator must know where to locate information that is needed to successfully conduct his/her investigation. One of the most crucial and blatantly obvious sources of vital information is the crime scene. One must understand that not all investigations involve or include an actual crime scene. Although most criminal acts begin and end at some point and some where; a crime scene in the traditional investigative sense, does not exist or is not practical or material to locate, identify, preserve and process in certain criminal circumstances. With that said, let us focus on the traditional tangible crime scene within the context of the most common criminal acts; homicide, robbery, assault, burglary, sexual assault, etc The crime scene is the central location of a crime and usually the starting point of an investigation. This, however, is not to say that there are not additional or secondary scenes which, dependant upon the type and to what extent a criminal has perpetrated a crime, could be quite varied and numerous, spanning a great distance over a protracted period of time. These scenes contain physical traces of the criminal, the victim(s), weapons, tools, latent prints, DNA, and serological matter, etc The value of the crime scene as an investigative resource is not permanent and is often environmentally sensitive which can result in rapid deterioration of potential evidence. The most basic and fundamental rule relating to crime scene protocol mandates the protection against contamination and destruction before and during processing. If nothing else, protect the integrity of the scene. The information obtained from a crime scene can afford the criminal investigator proper direction during the overall investigative effort. Often times, in addition to the forensic information derived from the crime scene, people are the engine that drives the information machine; especially when there is a considerable lack of tangible evidentiary items available. An investigator is continually tested and evaluated by his ability (or lack thereof) to obtain information from people; perpetrators, victims, witnesses, confidential sources and general acquaintances alike. The importance of this investigative resource should not and cannot be ignored. The investigator must be able to communicate effectively with people from all walks of life regardless of social and/or economic standing. This talent or art takes some practice and is often refined with experience. Law Enforcement personnel in general, will be well served to remember that they should know the people who live, work and frequent their area of assignment and to never compromise themselves (morally or ethically) when attempting to illicit information from criminals and/or other less scrupulous individuals, no matter how well intentioned. The criminal investigator must remain objective and open to different perspectives when conducting an investigation. He/she should follow the facts wherever the facts may lead them and not attempt to fit certain facts to the exclusion of others into a pre-determined conclusion. One must always look beyond the obvious and seek the truth.

A Glossary of Legal and Court-Specific Terms

You may see or come across the following terms and definitions throughout our courses and in your career as a private investigator. Acquittal: Final judgment that a defendant in a criminal trial has not been proved guilty beyond a reasonable doubt; "not guilty." Affidavit: A written declaration made under oath; a written statement sworn to be true before someone legally authorized to administer an oath. Appeal: A request made to a Court of Appeals (Appellate Court) by a party of a legal proceeding who believes that the original court or legal venue has made certain specific legal or procedural errors that resulted in a less favorable or incorrect decision. The appellate courts job is then to review the lower courts ruling or action to determine if it was correct. One who appeals is called the "appellant." Arraignment: A proceeding in which an individual, who is accused of committing a crime, is brought into court to hear the specific charges levied against them and then asked to enter a plea of guilty, not guilty, nolo contendre, etc. Bail: Security given for the release of a criminal defendant in custody to secure his appearance on the day and time set by the court. Bench Trial: A trial in which a judge decides which party prevails rather than a jury. Brief: A written statement submitted by each party in a legal proceeding that explains why the court should decide or rule in that party's favor. Chambers: A judge's office. Capital Offense: A crime punishable by the death penalty. Case Law: The law as reflected and shaped by the history of decisions of the courts. Chief Judge: The judge who has primary responsibility for the administration and management of a court system. Class Action: A civil action brought by one or more individuals on behalf of themselves and "all others similarly situated" (or some other equivalent language). Conviction: A judgment of guilt against a criminal defendant.

Counsel: To give legal advice; a term also used to refer to the lawyers in a legal proceeding. Damages: Money awarded to plaintiffs to be paid by the defendant of a civil suit in order to compensate them for their injuries. Default Judgment: A judgment automatically entered in favor of the plaintiff because of the defendant failed to answer or appear to contest the plaintiff's claim after being properly notified. Defendant: A person or institution against whom an action is brought in a court of law; the person being sued or accused. See also Plaintiff. Deposition: An oral statement made before an officer of the court authorized to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or gain information and testimony to be used later in trial. Discovery: The process by which lawyers learn about the opposing partys case during their preparation for trial. Typical tools of discovery include depositions, interrogatories, requests for admissions, and requests for documents. District Attorney: An elected official charged to prosecute and defend cases on behalf of the people or State. The District Attorney employs a staff of Assistant District Attorneys also called prosecutors. Docket: A log containing the complete history of each legal proceeding in the form of brief chronological entries summarizing court proceedings. Evidence: Testimony, records, documents, material objects, or other things presented at a trial to prove the existence or nonexistence of a fact. Felony: A crime of a more serious nature than a misdemeanor; generally, a criminal offense punishable by death or imprisonment in excess of one year. Grand Jury: A group of 16-23 citizens who listen to evidence of criminal allegations presented by the District Attorney and his or her prosecutors in order to determine whether there is enough probable cause to bring that individual to trial. See also Indictment. Habeas Corpus: A court order that is usually used to bring a prisoner before the court to determine the legality of his imprisonment. A writ of habeas corpus may also be used to bring a person in custody before the court to give testimony or to be prosecuted. Hearsay: Testimony by a witness who does not have first hand knowledge of a specific incident in question but heard about it from someone else; not typically admissible as evidence in court. Impeachment: The process of calling a witness' testimony into doubt or proving that it is false. Indictment: The formal charge issued by a grand jury stating that there is enough evidence that

the defendant committed the crime to justify having a trial. Injunction: A courts order compelling or prohibiting a defendant from performing specific acts. Jurisdiction: The legal authority of a court to preside over a legal proceeding. Jury: The group of citizens selected to hear evidence in a trial and render a verdict as a result. Jury Instructions: A judge's directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply in rendering a decision. Jurisprudence: The study of law and the structure of the legal system. Liability: Something for which one is liable; an obligation or legal responsibility. Magistrate Judge: A judicial officer of a district court who conducts initial proceedings in criminal cases, decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters on behalf of district judges, and decides civil cases with the consent of the parties. Misdemeanor: A lesser criminal offense punishable by one year of imprisonment or less. Mistrial: To invalidate a trial by causing or committing a fundamental procedural or legal error. When a mistrial is declared, the trial must start again with the selection of a new jury. Motion: A request by a litigant to a judge for a decision on an issue relating to the case. Negligence: The failure to do something that a reasonable person, guided by ordinary considerations, would do; or the doing of something that a reasonable and prudent person would not do. Nolo Contendre: "I will not contest it." Plea which has same effect as pleading guilty, except that nolo contendre plea in a criminal case may not be used against the same person in another criminal trial or civil suit based on the same facts. Opinion: A judge's written explanation of his or her decision. Oral Argument: An opportunity for lawyers to make their case before the court. Perjury: Making a false statement while under oath. Petty Offense: A federal misdemeanor punishable by six months or less in prison. Plaintiff: A person who brings an action in a court of law. See also Defendant. Plea: A criminal defendant's statement in which he answers the charges levied against him with a reply of either "guilty" or "not guilty."

Pleadings: Written statements filed with the court in which counsel describes a party's legal or factual assertions regarding the legal proceeding. Precedent: A court decision rendered in an earlier case with facts and legal issues similar to a dispute currently being contested. Judges will generally "follow precedent;" meaning that they will use the principles established in earlier cases to decide new cases unless the previous case is found or proved to be faulty. Pretrial Conference: A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case. Pretrial Services: A department of the district court that conducts an investigation of a criminal defendant's background in order to help a judge decide whether to release the defendant on bail. Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision of a probation officer, who makes certain that the defendant follows certain conditions of his release. Pro Se: A Latin term meaning "on one's own behalf"; in courts, it refers to persons who present their own cases without lawyers. Prosecute: To charge someone with a crime. A District Attorney and his assistants bring and try criminal cases on behalf of the people. Public Defender: An attorney employed by the courts to provide a legal defense for criminal defendants who are unable to afford counsel. Record: A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the proceeding. Remand: To send. For example, the act of an appellate court sending (or remanding) a case to a lower court for further proceedings or a command to remand a defendant into the states custody to serve a sentence after being found guilty. Reverse: The act of an appellate court setting aside the decision of a trial court. A reversal is often accompanied by a remand to the lower court for further proceedings. Sentence: The punishment ordered by a court for a defendant convicted of a crime. Sentencing Guidelines: A set of rules and principles established that trial judges use to determine the sentence for a convicted defendant. Sequester: To separate. Sometimes juries are sequestered from outside influences during their

deliberations. Service of Process: Notifying a person that he or she has been named as a party to a lawsuit or has been accused of some offense. Process consists of a summons, citation or warrant, to which a copy of the complaint is attached. Statute: A law passed by a legislature. Subpoena: A command, issued under authority of a court or other authorized government entity, to a witness to appear and give testimony; also referred to as a Summons. Subpoena Duces Tecum: A command to a witness to appear and produce documents. Summary Judgment (SDT): A decision made on the basis of statements and evidence presented for the record without a trial. It is used when it is not necessary to resolve any factual disputes in the case. Temporary Restraining Order (TRO): Prohibits a person from taking an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held. Testimony: Evidence given by a competent witness, under oath, in any legal proceeding; distinguished from evidence derived from writings and other sources. Tort: Any action or inaction that wrongs, damages, or injures another, and thus forms the basis of a civil lawsuit. Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition. Venue: The geographical location in which a case is tried. Verdict: The decision of a trial jury or judge that determines the guilt or innocence of a criminal defendant or the final outcome of a civil case. Voir Dire: The process by which judges and lawyers select a trial jury from among those eligible to serve, by questioning them to make certain that they would fairly decide the case. Warrant: A written order directing the arrest of a party. A search warrant orders that a specific location be searched for items, which if found, can be used in court as evidence. Witness: Someone who sees an event and reports what happened; a person called upon by either side in a lawsuit to give testimony before the court or jury.

Writ: A formal written command or order of the court requiring the performance of a specified act.