Do Defendants Get Private Investigators at Public Expense? Revisted

 

Way back in 2023, I wrote about this very topic. I was reminded of that post today when I came across this article describing a case in Northwest Ohio. In it, an accused killer requested funds to pay a private investigator. The request is for $5,000 (about 30 hours of service).

So What?

The issue, to me, is one of fairness. Without knowing anything about the case, I feel very confident that the police spent much, much more than $5,000/30 hours in gathering the facts for this case. Why shouldn't the defendant have at lease someone looking into facts for him?

Unsuprisingly, The defense attorney stated: "Through the review of discovery materials, the defendant has already identified at least two other potential individuals with motive to commit the alleged crimes herein. Additionally, there are other potential witnesses the defense wishes to seek out and interview that law enforcement appears to never have contacted.”

Federal Constitutional Issues

The constitution requires equitable (not equal, but fair) treatment for persons accused of crimes. The Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

In my opinion, the bolded parts of the Amendment are most relevant to the discussion here.

As stated above, the Sixth Amendment to the United States Constitution guarantees certain rights to criminal defendants. This Amendment is most commonly known as the right to representation by counsel in criminal proceedings. The Criminal Justice Act (1964) is the law that established the system for appointing and compensating legal representation in federal criminal proceedings for indigent persons.

The federal courts recognized the importance of private investigators to a criminal defense by establishing guidelines specifically addressing their availability and appointment for all defendants. Certain guidelines and codes (Chapter 3 of the CJA Guidelines and 18 U.S. Code Section 3006A) specifically authorizes an indigent defendant to petition the court to obtain a private investigator of the defendant’s choosing at no cost to the defendant.

Application to States

The Fourteenth Amendment, through the incorporation clause, ensures that defendants will have at least the civil rights found in the federal system. As a result, most states have similar statutes or codes on the books that allows for defendants to petition courts for private investigators. Some states even have private investigators dedicated to public defenders' offices. I like that situation the best.

What Does it all Mean?

Basically, it means that many defendants will have a private investigator on their case, some of whom will be paid out of the public treasury. And while some may question the desirability of paying for the defense of people accused of murder, rape, and other horrible crimes, the simple fact of the matter is that their rights are your rights. Sometimes the system gets it wrong; innocent people are accused and convicted every single day. If you were ever accused of a crime, you'd want your rights protected as well.

Concluding Remarks

Some may question the motives behind advocating for private investigators by a private investigator. That's fair. But in my view, simple fairness dictates that people have access to equitable resources when freedom is on the line. And the Constitution (and many state constitutions) agree with me.

 

This post originally appeared on LinkedIn.