Strategies for Dealing with an Investigator

One of the most important tasks of an attorney during the pretrial investigation stage is to develop a specific strategy for professional defense against suspicion (hereinafter referred to as “defense strategy”). The defense must not be haphazard, and simply developing a specific strategy is not sufficient to carry it out. A clear defense strategy must be established—a plan of action and intermediate goals through which strategic objectives can be achieved, either directly or indirectly.

Unfortunately, a lawyer’s work during the pretrial investigation phase sometimes boils down to a reactive approach, whereby if the client is summoned for an investigative proceeding or to court, the lawyer goes; if no summons is issued, the lawyer takes no action.

In the author’s view, acting according to this principle is not an effective defense strategy, although, to be objective, it should be noted that such tactics are sometimes justified.

However, in most criminal proceedings, a defense attorney’s actions during the pretrial investigation stage should be active rather than passive; the defense attorney’s conduct in the process is not determined solely by the behavior of others (such as the investigator), but is instead driven by the defense attorney’s own volition, and it is the attorney who seeks to impose his or her “agenda” on the criminal proceedings during the pretrial investigation.

Thus, we can speak of reactive and active models of defense tactics.

This in no way implies that a defense attorney should merely go through the motions for the client; on the contrary, the attorney must develop a clear strategy whose outcomes are predictable for the attorney and have a clear objective, although they may—and sometimes must—appear (to the investigator) chaotic and incomprehensible (a sort of tactic to mask the true defense strategy).

Defense strategies can also be complex. Depending on the defense strategy employed during the pretrial investigation stage, it is necessary to develop a strategy for working with the investigator.

After all, the investigator is precisely the person with whom the attorney and their client will, as a rule, interact most frequently during the pretrial investigation stage.

Attorney!

Never go to the investigator without preparing your client first.

The client must be prepared to work with the investigator, just as the attorney must be.

Let’s consider a few possible practical scenarios.

The client was detained pursuant to Article 208 of the Criminal Procedure Code of Ukraine, and the attorney has not yet had the opportunity to speak with the client in confidence.

Although paragraph 3 of Part 2 of Article 42 of the Code of Criminal Procedure of Ukraine provides for the right, upon first request, to have a defense attorney and to meet with him or her prior to the first interrogation, subject to conditions that ensure the confidentiality of the communication, in practice, it is impossible to fully implement this legal provision, since, in the event of a person’s detention, the attorney will most likely have such communication at the investigator’s suggestion—either in the investigator’s office (without the investigator’s presence) or in the hallway under the supervision of operational staff or the investigator.

These circumstances do not allow for fully preparing the client or preparing oneself for a particular investigative action; however, this guarantee must be utilized as effectively as possible. It is necessary to establish the exact time of the arrest, the circumstances under which the client was arrested, the location of the arrest, and so on.

In this situation, it is highly likely that an investigative action such as the interrogation of the suspect will follow the detention; therefore, it is necessary to decide whether to provide testimony to the investigator or to exercise the right guaranteed by the Constitution of Ukraine and the Code of Criminal Procedure and remain silent.

The tactic of remaining silent may be chosen either for the entire pretrial investigation phase or for a specific investigative procedure.

It all depends on the circumstances and the defense’s strategy

One can choose a strategy whereby the client provides testimony, for example, regarding the time and place of their actual detention, if the actual time, place, and circumstances under which they (the client) were detained differ from the information recorded in the detention report.

Why is this important and the right approach?

As a rule, if a person is detained pursuant to Article 208 of the Criminal Procedure Code of Ukraine, the investigator’s next step will be to file a motion for the imposition of a preventive measure, and, as a rule—unfortunately— this has been the prevailing practice in recent years—the motion seeks a preventive measure in the form of pretrial detention.

In accordance with the provisions of Article 184 of the Code of Criminal Procedure of Ukraine, materials substantiating the motion for a preventive measure must be attached to the motion.

Thus, if a person was detained pursuant to Article 208 of the Code of Criminal Procedure of Ukraine, the detention report must be attached to the motion for a preventive measure; this report must specify the time and place of detention (this information may not correspond to the actual time and place of detention). If a client, when questioned as a suspect, provides testimony regarding the time and place, as well as the circumstances of the detention, and this is recorded in the suspect’s interrogation report—even if this report is not attached to the motion— it is possible and necessary to insist during the court hearing that it be included in the case file.

Readers may object and point out that the actual time, place, and circumstances of a person’s detention can be stated directly to the investigating judge. This is true; however, when this information is recorded in the interrogation protocol, the investigating judge will most likely review it even before considering the motion, provided it is attached to the investigator’s motion, and in any case in the deliberation room!

This is important because it makes it possible to establish the actual time from the service of the notice of suspicion, its delivery to the court, the consideration of the motion to impose a preventive measure, and—if the motion is granted—the selection of the preventive measure and the calculation of the time spent in custody!

Apart from the aforementioned details—namely, the time, place, and circumstances of the person’s arrest—the client need not provide any other statements to the investigator; and in response to the investigator’s question, “Are you refusing to give a statement?”, the client should reply, “I am not refusing to give a statement, but I will give such testimony exclusively in court.” This argument will allow both the attorney and their client to prepare for giving testimony.

In practice, unfortunately, a subjective rule—or perception—has taken hold among both investigators and investigating judges that if a suspect invokes Article 63 of the Constitution of Ukraine, it means they are hiding something, and therefore must be involved in the alleged crime (the so-called “presumption of guilty silence”). Neither the investigator nor the investigating judge will, of course, state this in official documents, as that would constitute a violation of Article 63 of the Constitution of Ukraine; however, a certain conviction will have been formed. The author has encountered, in practice, indictments under the 1960 Code of Criminal Procedure in which the defendant’s refusal to testify, citing Article 63 of the Constitution of Ukraine, was interpreted by the investigator as an aggravating circumstance.

It is important to remember that even if the suspect’s refusal to testify, citing Article 63 of the Constitution of Ukraine, is not explicitly reflected—or even mentioned—in the motion or in the ruling on the imposition of a preventive measure, this will not preclude the influence of this circumstance on the investigating judge’s decision, since Article 94 of the Criminal Procedure Code of Ukraine provides that the investigating judge evaluates the evidence according to his or her inner conviction (Part 1 of Article 94 of the Criminal Procedure Code of Ukraine).

Thus, by not refusing to testify before the investigator but stating that such testimony will be given in court, the defense attorney for such a client has sufficient time to communicate with the client in a relatively calm setting to explain to the client his or her rights, the procedural framework of the pretrial investigation, and the consequences under the Code of Criminal Procedure of Ukraine, to agree on a legal strategy, and to prepare the client.

Preparing the client is a separate issue not covered in this section; however, it should be noted that the client must be prepared, including through simulations of various investigative or procedural actions, since after such preparation, the client will understand the procedural order, which should help them participate more easily and calmly in such investigative or procedural actions.

We all know that, pursuant to Part 4 of Article 95 of the Code of Criminal Procedure, the court is not permitted to base its decisions on testimony provided to an investigator or prosecutor, or on references to such testimony. This raises a logical question: why should an investigator conduct interrogations and document them in protocols? It’s simple. First, an interrogation is an investigative action through which the investigator gathers information that enables them to find other evidence, identify discrepancies in the evidence, and determine the cause of such discrepancies; Second, these transcripts are typically attached to all motions filed with the investigating judge as part of the pretrial investigation. Third, this enables the investigator to draft the indictment more accurately and prepare for cross-examination in court.

To develop the right defense strategy, it is also necessary to understand the investigator’s tactics.

Sometimes the investigator plays the “good cop” and may ask the attorney or client to share something about the case “off the record.” Or they might ask the client questions like: “Well, please tell me—just to satisfy my curiosity—since you’re the one who committed the crime; that’s exactly how it happened, isn’t it?”

What is the investigator’s purpose in doing this?

In the first case—to gather preliminary information, such as where to look for evidence. Through such “off-the-record” answers, the client—and sometimes the attorney—can point the investigator toward where to find evidence of guilt and which other witnesses might corroborate the investigator’s version of events.

In the second case, the answers may confirm or refute the investigator’s version of events—that is, serve as a guide for the investigator.

In this regard, it is recommended not to speak with investigators “off the record” and not to answer any of their questions outside the scope of the formal proceedings.

On the other hand, it seems that the same methods should be applied to the investigator. How exactly to do this is up to the attorney to decide, but in practice, it works.

In certain criminal cases, it is necessary to understand what led the investigator to take a particular stance and employ a specific tactic—in other words, to get to the root of the matter in these criminal proceedings— and then, once the answer to this question has been determined, to develop the correct defense strategy.

This is essential in so-called “fabricated” cases.

A special role is played by the tactic of challenging investigators.

Let’s consider an example. Before the hearing on a motion to extend a pretrial detention order, 15 minutes prior to the hearing on said motion, a motion to recuse the investigator who drafted the motion and the prosecutor who approved it a motion for their recusal was filed with the court clerk’s office, and before the hearing on the motion to extend the preventive measure began, the defense attorney informed the investigating judge of these motions. The investigating judge hearing the motion to extend the preventive measure can no longer consider this motion until the issue of the recusal of the investigator and the prosecutor has been resolved. And since the aforementioned motions—separately regarding the investigator and the prosecutor—were not filed during the court hearing, but through the court clerk’s office, their consideration will take place in separate judicial oversight proceedings and potentially before a different investigating judge, and not necessarily on the day the motion to extend the preventive measure is considered.

In practice, this defense tactic did not result in any specific legal consequences, as the court hearing never began because the prosecutor was unable to confirm his authority—namely, by presenting the order appointing the team of prosecutors. The situation was resolved by the fact that the investigating judge did not have time to consider the motion to extend the preventive measure in the form of pretrial detention and postponed consideration of the motion to another day, and at 00:00, the client was released from the pretrial detention center. The motion to extend the pretrial measure, filed at the prosecutor’s request, was left without consideration, as it is impossible to extend something that no longer existed.

The “reverse medal” tactic.

The investigator served the client with a summons to appear as a suspect, even though the client had not actually acquired that status—that is, he had neither been detained nor received a written notice of suspicion— in a “fabricated” case under Part 4 of Article 190 of the Criminal Procedure Code of Ukraine…

(To be continued)...

Note: The text of the article features an image of the poster by Vatolin N.N. and Denisov N.V., “Don’t Talk!” (1941).