immediately before and during testimony.
Time and experience have their place, but
Mort Smith
Question.
What should I do to prepare my investigator
to testify?
Nothing stresses out an investigator more
than knowing they will have to testify and
not knowing what questions they will be
asked during direct examination. Often,
during trial prep, lawyers are so busy
concentrating on getting ready for a trial or a
hearing that they prepare every witness on
the list except their investigator.
I suggest you schedule a meeting with your
investigator around thirty days before you
will need him/her to take the stand. Discuss
the case in detail from start to finish. Look
for holes in your case and ask your
investigator for his/her input. Work with
your investigator to seal up as many holes in
the case as possible.
Instruct your investigator to complete all
unfinished investigative work. This means
locating any witnesses left to be
interviewed, serving trial subpoenas,
coordinating transportation for witnesses to
and from court and other logistical needs.
Conduct a mock examination in which you
play the defense lawyer, and either you or
another attorney from your office plays the
prosecutor. It does not matter how long
your investigator has been in the profession
or how many times he/she has testified, they
still need to be prepared. A mock
examination session is a good way to
condition your investigator. If done
properly, the investigator should experience
the same adrenalin dump and nervousness
he/she will feel while on the stand. If done
enough times, your investigator will learn
how to control that trepidation that rears up
5
they mean nothing if an unprepared
investigator testifies. He/she needs to
familiarize themselves with the facts of the
case, including the weaknesses and strengths
of his/her testimony. Additionally, a mock
testimony alerts you to any surprise answers
you had not anticipated.
Defense investigators, like police officers,
feel they are supposed to be nice to their
lawyers and nasty to opposing counsel. I
strongly urge you to prohibit this behavior
during your case. If the cops want to act
like jerks, let them. Your investigator needs
to exemplify professionalism.
Instruct your investigator not to argue or be
evasive with opposing counsel. This looks
unprofessional and can harm your
investigator’s credibility in the eyes of the
judge or jury. Tell your investigator it is not
his/her job to “win” the case. He/she is
merely contributing their piece of the puzzle
and it is your job to pull it all together in the
end.
Your investigator should look and act
professional. Instruct your investigator to
come to court wearing professional attire. A
nice blazer, slacks, shirt and clean shoes for
the guys and a nice business attire and clean
business appropriate shoes for the women.
He/she should dress like he/she is going to a
job interview. The defense is already behind
the ball when the case starts, so every little
bit helps. People judge one another, in part,
by how they dress, and if looking
professional could help your investigator’s
credibility by a nudge, that makes it all the
better for the case.
Instruct your investigator to speak plainly
and clearly to the judge or the jury. Your
investigator should avoid the cop talk and
legalese and speak the language the jury
understands. Tell your investigator to
remain calm and if they feel themselves
getting nervous, to breath in deeply and
exhale slowly. If your investigator gets dry
mouth while on the stand, he/she should
politely ask for some water.

Tell your investigator to answer “yes” and

“no” questions with a “yes” or a “no.” If the Mort Smith, M.A. is an Illinois Licensed Private
question cannot be answered with a “yes” or Detective who specializes in criminal defense
investigations. He is also the Associate Director of
“no”, your investigator should kindly say the Defense Investigator Certification Program,
that and then do the best to answer the Center for Justice in Capital Cases at the DePaul
question. Tell them to make sure they fully University College of Law. Mort can be reached at
understand each and every questions asked 708/612-9722 or mortsmith@aol.com
before answering. Let them know it is all
right to asked that a question be repeated.
Tell your investigator to refrain from trying
to explain their answers. This only brings
further attention to an answer that you may
want to leave behind. Advise your
investigator to pause slightly before
answering a question in case an objection is
raised. Tell them to remain poised and
professional until the judge rules on the
objection.

At the end of his/her testimony, your

investigator should leave the stand in a
professional manner. Let them know how
inappropriate and unprofessional it would be
should they decide to moonwalk out the
courtroom.

Your investigator’s role becomes

increasingly important during trial and can
often make a difference in the ultimate
conclusion. In a world where a police
officers badge equals believability, proper
preparation of your investigator equals
credibility. Believability is that which we
chose to accept as true. Credibility is that
which is worthy of being believed.

If you view the investigator/lawyer relation

as a team and move forward in a
collaborative effort, juries, judges and most
importantly, your client, will notice--- and it
may mean the difference between life and
death for your client.

IACDL Newsletter Vol 1 No 6