By Jason W. Buchanan
Criminal DA Investigator in Johnson & Somervell Counties
The role of an investigator in a prosecutor’s office differs significantly from that of a street officer or local agency detective, and it even varies widely across our big, beautiful state. It is often dependent on the prosecutor’s office, the type of jurisdiction (urban versus rural), departments within the district, and—frankly—the personalities of those involved in that particular judicial ecosystem. In many jurisdictions, it is seen as a coveted position for a senior investigator at the end of a successful and distinguished career with a local law enforcement agency.
I have a different opinion.
The job of the investigator is to maintain a delicate balance as a liaison between agencies and prosecutors. Picture, in your mind, the scales of justice. They are intended to represent fair and balanced coordination within a system where fairness and impartiality rule the day. Within this framework, I view the analogy as involving many scales. The investigator maintains multiple balances: between patrol officers and prosecutors, between CA or DA investigators and prosecutors, and between the public and prosecutors. Not all jurisdictions share the same demands, and the nuances of personality vary widely. Regardless of whom the investigator is dealing with, success requires a unique understanding of everyone’s perspective. Communication is the key.
Prosecutor-office investigators need not be utilized merely as case runners or process servers. Rather, I see our role as a liaison in five primary areas:
• legal translator
• quality control officer
• strategic partner
• ethical safeguard
• relationship manager
As this article unfolds, I will describe what I mean by each and give some examples from my own personal experiences.
Legal translator
This role requires the investigator to translate the facts of a case into legally relevant evidence. An investigator can serve as a sturdy bridge between the day-to-day hard work of “boots on the ground” officers and detectives and the courtroom standards set by the prosecutor’s office.
A patrol officer may do a spectacular job documenting the facts of an offense in a report, but if those facts are not linked together so that the prosecutor can understand and clearly present them to a jury, we have nothing. The report can read more like a sterile checklist than a narrative of interconnected events culminating in probable cause. We have all read a report consisting of a list of conclusions based on what the officer was thinking. But such a report doesn’t give us what we need to stitch things together and truly tell the facts of the investigation. A clear outline of the investigative process and what the officer was thinking can make a report much more powerful when it is translated into an indictment. It is an accepted practice that you don’t put all the facts of an investigation into a warrant affidavit, but all those minor details and facts should absolutely be in the final investigative reports and supplements.
If prosecutors clearly communicate expectations to their constituent agencies, CA and DA investigators can reinforce those expectations to ensure receipt of the desired work product. While it is not necessarily the job of a prosecutor’s investigator to reinvestigate a case, there are times when doing so becomes necessary. A recent example is when I received a call from a local patrol officer who had written a warrant for unauthorized use of a vehicle. The warrant and affidavit were complete and sufficient except for one thing: There was nothing in the warrant stating that the vehicle’s owner had not given the person in possession of the vehicle (the owner’s son) permission to take the car or a specific time it was to be returned. I am certainly not criticizing the officer (because when you’re under the gun with a complainant in a highly emotionally charged situation, we get in a hurry and can lose sight of even an obvious detail). When I explained the issue to the officer, he was embarrassed and added those details to the warrant. This is where the legal translation and a fresh set of eyes become valuable not only to prosecutors but also to the front-line officers. It is also a good way to gain their confidence and build credibility.
Another thing that comes up regularly is the difference between a search during a consensual encounter versus a Terry frisk. Search and seizure situations are a daily topic of discussion. We recently had a situation with a very good and experienced officer who had a consensual encounter with a citizen and ended up arresting him for possession of drugs and paraphernalia. Without going into too much detail, the officer conducted a pat-down of the subject and recovered the contraband—but without a clear verbal articulation on his body camera of the reasonable suspicion or probable cause for the search. I was asked to visit with this officer, provide him with materials clarifying the different types of searches, and offer suggestions on articulating his actions for the camera the next time. We didn’t need to get his supervisors involved because in the situation’s context, this was a minor issue that could be fixed with instructional resources and a friendly conversation. Which leads us into our next point: quality control.
Quality control officer
I think every prosecutor at one time or another has reviewed a case filed by a local law enforcement agency and shaken his head in bewilderment—or perhaps disgust—at the incomplete, chaotic bundle of clutter before him. Addressing the poor quality of the case file can be delicate, and it requires exceptional communication skills. Good communication is the connective tissue between law enforcement agencies and prosecutor offices.
The investigator should identify gaps or suppression risks—and address those identified by the prosecutor—as early in the process as possible. Key components include ensuring that probable cause and charging standards are met and, most importantly, that the elements of the offense are satisfied. Few things are more frustrating than reviewing a warrant affidavit prior to judicial presentation and discovering that the first two facts literally negate the elements of the offense (sadly, a real-life example I have encountered within the last six months). The sooner these weaknesses are identified and corrected, the more likely the outcome will be a favorable plea agreement or successful trial.
It can shake a good officer’s confidence or cause him to unnecessarily dwell on a decision if he receives a call directly from a prosecuting attorney. (I too am a “self-punisher” and can sometimes overthink constructive criticism.) Plus, criticism from a lawyer to a street cop may become contentious and might damage relationships, but a few well-placed suggestions from an experienced fellow officer (a CA or DA investigator) are more likely to be well received. This is where investigators can truly shine. If investigators are getting to know the guys on the street when possible, it can pay dividends and prevent what can be a significant impact on an officer’s confidence and performance. We should be in a constant state of building and maintaining strong relationships with municipal, county, state, and federal agencies.
The investigator can also work with local agencies to ensure the credibility of crime scene technicians, subject-matter experts, and other specialized professionals, as well as the admissibility of the evidence they provide. Maintaining close relationships with these people and understanding their strengths and limitations is critical as trial preparation approaches. As always, communication is key. I have frequent conversations with some of our crime scene technicians, and I like to ask them what their strengths are and what they dislike the most. I also ask what training they have attended and what they have coming up. Just these short interactions can tell us quite a bit about technicians. These are good things to keep in mind when going through crime scene photos and results with prosecutors. An investigator may have some insight into the scene based on what he knows about the technician who worked on it. It could also be valuable to stay up-to-date on the latest conclusions from the Texas Forensic Science Commission and other professional organizations. I’m very fortunate to have a good relationship with a forensic odontologist; we have had some fascinating conversations about bite mark evidence and identification of victims through dental records.
Strategic partner
This is where the hard work of relationship building truly pays off. Prosecutors on the front lines in the courtroom set the strategy, and they can rely on their investigators to help execute it. Depending on the office and prosecutor, this help can include recommending follow-up interviews, identifying search warrant or subpoena opportunities, locating corroborating evidence, and addressing case vulnerabilities. This is where the investigator and prosecutor can work hand in hand to build a case, especially if there is a close working relationship.
A personal example that comes to mind is a recent sexual assault case. A detective had investigated the case to a point where the probable cause for arrest was present, but that was where he stopped. There was sufficient information to prosecute the offense, but there were many other avenues to pursue, for example, multiple electronic devices and online storage platforms to address. We on the prosecution team knew that the detective’s caseload was significant and that time would be an issue, as trial dates were rapidly approaching. Instead of asking the detective to do this additional work, I myself wrote the warrants, executed them, and examined the evidence for my trial team. This was beneficial in several ways. The information came straight to our office for inclusion in the case file, there was no lag time between offices and communications, and the detective was appreciative of the assistance. A little extra effort on the part of the CA or DA investigator can be incredibly valuable, not only for the attorneys but also for local officers.
Another component of the strategic partner role is providing feedback, training, assistance, and guidance to outside professionals when needed. This requires finely tuned communication skills. Delivering constructive criticism or recommending additional training can be uncomfortable. For example, in my experience, what law enforcement professionals dislike more than anything is testifying. When a particular officer who is uncomfortable testifying is scheduled for court, a CA or DA investigator can help him with thorough case preparation sessions—reviewing expected questions and likely defense strategies. Such prep can significantly reduce anxiety. Courtroom demeanor training or roll-call instruction can replace uncertainty with confidence. Such training can be done as a class prepared by prosecutors specifically for detectives and officers or more informally as a prosecutor stopping by patrol roll calls and giving 10–15 minutes of pointers for testifying. No one is ever excited to testify, but knowing what to expect from the prosecutor can put a witness at ease. I cannot stress thorough trial preparation with officers and detectives enough. Lawyers live in the courtroom, but we officers are only visitors.
The same applies to report writing and evidence documentation. Gentle reminders coupled with targeted training recommendations go a long way. As with courtroom demeanor and testimony, this training can be done with a 1–2-day class for local officers or at a roll call training where you spend 10–15 minutes talking about problems that have come up in prosecution and how to avoid them. Talk with your intake attorneys and ask what they are seeing. They can tell you who writes the best reports and who needs guidance. Sadly, if the report has made it all the way to the prosecutor’s office, it has already gone through the entire review process at a law enforcement agency. It will take a team effort with an investigator and a prosecutor approaching an agency to relay that there are deficiencies and how to address them. It is best to handle this early—before you have a stack of cases that aren’t prosecutable.
A phone call requesting that an officer get assistance with report writing is a last resort, but it is an option. How you ask will be the difference between improved performance and hurt feelings. “Officer Daniels is sending us terrible reports, and he needs some remedial training” is not what I recommend. Rather, try: “Officer Daniels is doing some great work and we’re glad to see his cases come through, but we think if he can polish his writing style up a little, it can mean the difference between trial and a good plea agreement. Would you mind working with him on his documentation of events? That will really level up the quality of his cases.” This is a much safer and softer approach than raw criticism, which can damage relationships. The minute you mention trial to an officer who isn’t a good writer, he may start seeking help on his own.
If absolutely necessary, the prosecutor can go through a report with an officer individually and point out specific issues. This is not a job for an investigator.
Ethical safeguard
If the public does not trust us, we are without hope. Protecting the integrity of the prosecutor’s office and maintaining public trust is an absolute must.
The CA or DA investigator should review potential Brady and discovery concerns and witness integrity issues as cases progress toward trial. “An ounce of prevention is worth a pound of cure” is an appropriate guiding principle here. An investigator who communicates regularly with officers and detectives will often hear early rumors of ethical issues or pending internal affairs investigations. These must be tracked carefully.
Due process violations, coercive interview techniques, and credibility or bias concerns can destroy an otherwise strong case. All good investigators understand that the goal of an investigation is not to put someone in jail or prison. The goal is to find the truth and proceed accordingly.
Establishing a culture of transparency, reinforcing disclosure obligations, and maintaining ethical boundaries between investigation and trial advocacy are critical to preventing miscarriages of justice and reputational harm.
Relationship manager
As an ambassador on behalf of the elected prosecutor, the investigator wears many hats—chief among them, communicator. Investigators will be tasked with delivering both bad news and good news.
Those who make themselves available by phone, maintain an open-door policy, and visit agencies socially—not only on official business—will find difficult conversations become easier. I recently had a tough conversation with an officer about searches. He is a good officer and he is very proud of his successes. I could tell immediately when I went over the incident with him that he was embarrassed and his feelings were a little hurt. I gave him some encouragement, but I could tell it still bothered him. It would bother me too. No one wants to be told they were wrong and that their mistakes ruined an otherwise good case.
In my previous job I had a brand-new officer working for me, and he wanted to do the right thing, but he also wanted things to be easy—which made it difficult for everyone else. I tried to gently guide him to the right answers, but finally I had to have a very blunt and truthful conversation with him. We worked closely together, and every day for three weeks he barely spoke to me. As we marched through those weeks, though, he came to see that I was right and that he still had much to learn. At the end of that assignment, he took me aside and apologized for his behavior, and he thanked me for my patience and the “kick in the butt” he needed. I haven’t seen him in almost two years, but the other day I received an email from him congratulating me on my retirement and thanking me again for being a good mentor.
There is no easy or good way to tell someone he was the problem, but it must be done. The best we can do is deliver the information as gently and in as friendly a manner as possible. I like to use what I call “the sandwich method.” When correcting behaviors, praise first, deliver the hard-to-hear facts, and then close out with more praise. If you are dealing with someone who cares about his performance, he will remember the correction. (I can give you an awful lot more details about times I performed poorly than the times I performed exceptionally.) These engagements will be much easier and better received if you are already out there interacting with officers. Attend some shift change briefings. Go have coffee. Grab some lunch. Get the detectives you work with daily to introduce you to as many officers as you can. Give them your card and your phone number. Be available. It takes some time, but you will reap benefits in the long run.
Something else we have instituted that is getting positive results is praising good work. When our office sends an email to an agency and asks the command staff to congratulate an officer or detective on a particularly outstanding performance or report, the word circulates. When officers discover it is possible to get public recognition for good work, good work starts happening more often. Recently we recognized several officers publicly at the countywide chiefs’ meeting. You could see the look of pride on the chiefs’ faces, and we asked them to go back to their departments and publicly congratulate the recognized officers. News of this praise spread quickly, and we are starting to see some benefits from that initiative. This recognition also helps offset the sting if constructive criticism later becomes necessary.
Everything I have written here can also be done by prosecutors. Engage with officers. Get to know their strengths and weaknesses. When those relationships are built, it will be easier to address those weaknesses.
The bottom line
We are all in this together. We all want thorough, complete, accurate, well-communicated, and ethical investigations and prosecutions. If that is not your goal, then perhaps shoe sales is a more appropriate profession (heavy sarcasm intended).
A good investigator should strive to fulfill all the roles discussed above, whether they are clearly labeled as an official job duty or not. With each of us working within our respective responsibilities, we can serve our communities in a way that fosters trust, justice, and accountability.
We are on the same side of the law as officers. The effectiveness of a CA or DA investigator can mean the difference between a mere arrest and an arrest followed by a conviction—and between short-term wins and long-term justice.
Let us strive not only to win battles, but to win the war.