Investigative Work Product, the Investigator and Admissibility

Jan 29, 2024

In legal cases, the need to hire a professional private investigator can often arise. After all, properly acquired investigative findings can shed light on a case and perhaps change the legal strategies for the investigative client, as well as the potential legal strategies for the opposing legal team.

It is no surprise, then, that when the opposing legal team becomes aware of an investigation which could dramatically affect their legal strategy, they will make every attempt to render the investigator’s work product, the investigator’s testimony, or even both inadmissible.

One of the most basic and yet effective ways of the investigator’s testimony not being allowed is to question whether the investigator was endorsed as a witness within the minimum time frame before the hearing or trial. It is crucial for the waiver of service to be signed, free of errors and returned to the court within the minimum time frame required.

Once the investigator clears the waiver of service hurdle, the opposing attorney will scrutinize the investigator in various ways. One of the most obvious ways is to inquire if the investigator is licensed to practice in the respective state of operation. Keep in mind different states have different standards on which type of investigations require a private investigator license. It is imperative for the investigator, and for the legal team who hired the investigator, to know ahead of time that any required licensing is ACTIVE and in GOOD STANDING.

Field investigations across multiple states will likely require the investigator(s) to be licensed in each of those states, unless there is a reciprocity agreement between any of those states, which is rare. Surveillance of an individual then can quickly become complicated if that individual travels across multiple states.

Please note that beginning in 2021, Colorado is one of only 6 states with no PI licensing.

The investigator’s background will almost certainly be scrutinized. Does the investigator have a criminal record? Once, while on the stand I had an opposing attorney, sure his legal team had done accurate research, ask if I had ever been convicted of a felony. I calmly responded, “No sir.” Perplexed, he then asked if I had ever been charged with a felony. Again, I calmly responded, “No sir.” Apparently, his legal team had mistaken me for another individual with the same name who had a felony.

If the investigator is able to withstand the scrutiny of their background while on the stand, the opposing attorney will next focus their efforts on the work product and how the information in the work product was obtained or developed. For surveillance cases, the opposing attorney will have both a report as well as a video at their disposal for scrutiny. They will look for clues to determine if the investigator trespassed on private property. Early in my investigative career, I was testifying on the results of surveillance documentation obtained in a rural area of Wyoming. The opposing attorney asked, and beyond asking, made a statement that based on the vantage point, that I could not have obtained the video documentation without trespassing onto the subject’s multi-acre private property. I calmly responded that all video documentation was obtained from public right-of-ways. What the opposing attorney didn’t know was that prior to becoming a private investigator, I worked in underground utility construction and was intimately familiar with and endorsed in public right-of-way field work. Rather than going into detail on the subject at hand, the opposing attorney quickly moved on with other questions. To this day, I train API’s investigators in differentiating between public and private property and keeping that in mind in each and every case.

Violating the subject’s privacy is another common accusation for opposing attorneys to use in an attempt to render the video and report inadmissible. API trains our investigators in understanding and ensuring that the subject’s reasonable expectation of privacy is never violated. Note there is a recent trend, well before hearings and trials, for opposing attorneys to accuse the investigator of trespassing, violating privacy and even using drones to conduct surveillance after receiving the video and/or report.

Did the investigator use a GPS tracker or other electronic tracking means such as software to assist in the surveillance? This is a sure-fire way of having the entire work product rendered inadmissible. To be clear, in any surveillance where the investigator did not obtain the consent of the individual to electronically track the person or their vehicles, the investigator cannot cross those boundaries and use GPS trackers.

There are many other ways to invalidate the investigative work product. Is it riddled with errors and/or poor grammar? The more errors a report contains, the more likely it can be held inadmissible. Does the report have unnecessary opinions? Some type of investigations may require the investigator to provide their professional opinion. Investigative clients should keep in mind the more opinions that are contained in a report, the more likely those opinions can render a report or the investigator’s testimony inadmissible.

Was any of the information obtained illegally or unethically? An investigator’s report is comprised of information. If even one piece of information was obtained illegally or unethically, the entire work product may be ruled inadmissible.

What does this all have to do with the investigative client? Isn’t the onus of the investigator’s qualifications, background, methods and work product on the investigator themselves? The short answer is yes. However, the investigative client should never spare the opportunity to learn as much as possible about their investigator. Do they come with references? Do they have a good reputation? Are they a part of associations where legalities and ethical boundaries in their fields of specialty are discussed? Is the investigator aware of the potential implications of an improperly conducted legal investigation, or one at the hands of an unqualified investigator?

If the investigator cannot properly communicate how they will ensure their work product and testimony will hold up in a legal setting, that investigator should not be entrusted with your legal case. It all comes down to placing trust in the hands of the investigator that the work product and testimony of the investigator will be effective when it is most needed. A professional investigator knows the delicacy of the trust a client places in that individual.

Thank you for entrusting your legal cases to the care of API.

-Robert Orozco