Should the defendant or the lawyer hire the investigator?

Ideally the lawyer. Under s. 90.502(1)(c), F.S., confidentiality extends to third persons to whom disclosure furthers the legal services, and Rule 3.220(g)(1) shields the opinions, theories and conclusions of defense counsel and their legal staff. Working through counsel keeps the investigation inside that structure.

Can a defense investigator talk to the alleged victim or a State witness?

Any witness may decline an interview, and nobody may be pressured — witness tampering is a crime under s. 914.22, F.S. Whether and how an approach is made is decided by defense counsel, who can also take a discovery deposition under Rule 3.220(h).

Can the investigator collect evidence from the scene?

The investigator documents the scene — photographs, measurements, sight lines, camera locations. Physical evidence is handled through the attorney, because altering, removing or concealing evidence in a pending matter is a felony under s. 918.13, F.S.

Is this only for serious felonies?

No. The value of an independent look at the facts does not depend on the charge. What changes is how much there is to investigate, and that is something to scope with your attorney.

What a Defense Investigator Does in a Florida Criminal Case

Q: Do the investigator’s witness statements have to be given to the State?

It can depend on the case. If the defense elects discovery, Rule 3.220(d)(1) requires it to list the witnesses it expects to call and disclose their statements in its possession. How interviews are documented is a decision to make with your attorney before they begin.

When someone is charged with a crime in Florida, the police investigation is usually finished, or close to it. The reports are written, the witnesses have been interviewed once, and the State has decided what happened. The defense starts from behind. A defense investigator is not there to argue the case — that is the attorney’s job — but to give the attorney an independent factual picture, built from the same scene, the same witnesses and the same records, by someone who has no stake in the State’s version being right.

The investigator works for the attorney

The single most important structural point is who the investigator answers to. In a criminal case, the investigator should be retained by, and report to, defense counsel — not the defendant directly, and not a relative paying the bill. There are two reasons. First, Florida’s lawyer-client privilege treats a communication as confidential when it is shared only with third persons to whom disclosure is in furtherance of the rendition of legal services (s. 90.502(1)(c), F.S.). Second, the criminal discovery rule protects from disclosure the opinions, theories and conclusions of the defense attorney and members of the attorney’s legal staff (Fla. R. Crim. P. 3.220(g)(1)). Working through counsel keeps the investigation inside that structure. Exactly what is protected in a given case is a judgment for the attorney, which is another reason the attorney should be directing the work.

It also means the attorney decides what is investigated. Some questions are worth asking only if the answer will help; an experienced investigator expects to be told the theory of defense and to work toward testing it, not to wander.

Reading the discovery

Most defense investigations begin with paper. In Florida, a defendant elects to participate in discovery by filing a Notice of Discovery, and the prosecutor must then serve a Discovery Exhibit (rule 3.220(a)-(b)). That exhibit includes a list of people known to have relevant information, sorted into Categories A, B and C; the statements of those people; any statements by the defendant; and reports of experts, searches and electronic surveillance. The rule defines “statement” to include police and investigative reports of any kind prepared for the case, though not the notes they were compiled from. Separately, the prosecutor must disclose any material information tending to negate guilt as soon as practicable, whether or not the defense has elected discovery (rule 3.220(b)(4)).

The investigator’s job is to read all of it closely and look for the gaps: a witness listed with no statement, a canvass that stopped two doors short, a time on a report that does not match a time on a receipt, a camera mentioned once and never collected.

Finding and interviewing witnesses

The witness list is a starting point, not an address book. People move, change numbers and stop answering. Locating them is core work — see our witness location article and skip trace services. Just as important are the people the police never found: the other customers in the store, the neighbour with the doorbell camera, the friend the defendant was actually with.

A good defense interview is neutral. The investigator identifies themselves honestly, asks open questions, and records what the witness actually says in their own words. A statement that reads as coached is worth less than no statement at all. And the defense should go in knowing a procedural point the attorney will manage: once the defense participates in discovery, it must, within 15 days of receiving the State’s exhibit, list the witnesses it expects to call and disclose their statements in its possession (rule 3.220(d)(1)). How interviews are documented is therefore a decision to make with counsel before the first one happens.

Where a State witness will not speak informally, the attorney can take a discovery deposition, and a deposition taken under the rule may be used to contradict or impeach that witness at trial (rule 3.220(h)(1)). The investigator’s preparation often shapes the questions.

Documenting the scene

Scenes change. Lighting is replaced, shrubs are trimmed, businesses close and cameras overwrite. Early defense documentation captures what a witness could actually have seen from where they say they stood: measured distances, sight lines, lighting at the relevant hour, photographs and video taken from the witness’s position, and the location of every camera that might have recorded the event. That work is part of our criminal defense investigations service.

Hypothetical example: an eyewitness tells police she saw the suspect’s face from across a parking lot at night. The investigator returns at the same hour, photographs the view from her stated position, and measures the distance and the lighting. The photographs do not decide the case — but they give the attorney something concrete to put to the witness, rather than a general suggestion that she might be mistaken.

Background on the people involved

Credibility is evidence. Public court records, prior sworn statements in other cases, relationships between witnesses, and anything the witness has published about the events can all bear on how much weight their account deserves. This is lawful records and open-source research, the same discipline as our background investigations, and it is always done for the attorney’s use, not for confrontation.

What a defense investigator cannot do

The lines here are firm, and an investigator who crosses them can do the client far more harm than good.

No pressure on witnesses. Florida law makes it a crime to use intimidation, threats, misleading conduct or an offer of benefit with intent to make someone withhold testimony, evade a subpoena, stay away from a proceeding or testify untruthfully (s. 914.22, F.S.). The penalty rises with the seriousness of the underlying case.
No touching the evidence. Altering, destroying, concealing or fabricating evidence, knowing an investigation or proceeding is pending or about to be instituted, is a felony (s. 918.13, F.S.). Evidence the defense locates is documented and handled through the attorney.
No contact with represented people outside the rules. A lawyer must not communicate about the subject of the case with a person the lawyer knows is represented by counsel, without that lawyer’s consent (R. Regulating Fla. Bar 4-4.2), and lawyers are responsible for ensuring that the nonlawyers they retain act consistently with the lawyer’s own obligations (rule 4-5.3). An investigator working for defense counsel works within those limits.
No pretending to be official. Impersonating law enforcement, or doing anything intended to falsely convey official status, is grounds for discipline against a Florida licensee (s. 493.6118(1)(i), F.S.).

When to bring an investigator in

Early. Witnesses are easiest to find and their memories freshest soon after the event, and video that has not been preserved is often recorded over. Waiting for the full discovery exhibit before starting can mean losing the things discovery will never contain.

What to bring

Your attorney’s name and contact details — the engagement should run through counsel.
The case number and charging document.
Any discovery your attorney has already received and wants reviewed.
Names of people who were present, and anywhere a camera might have been.

Miami Private Investigations is licensed in Florida under agency licence A1800135 and works with criminal defense attorneys across Miami-Dade. Attorneys can contact us for a confidential consultation about a pending case.