What a Criminal Defendant May Know That the Police Report Does Not
By Patrick L. Garrity, Boston Criminal Defense Attorney
When I first begin representing someone in a criminal case, one of the most important sources of information is often sitting directly across the table from me.
The client.
That does not mean a criminal defense lawyer should simply accept everything a client says as true. Good criminal defense requires independent investigation, critical analysis, testing assumptions, reviewing objective evidence, and sometimes telling a client that the evidence does not support his or her recollection.
But the client frequently possesses something no police report, prosecutor, investigator, or discovery packet can provide at the beginning of a case:
context.
The client may know who was present, what happened before the alleged incident, what relationship existed between the people involved, which text messages matter, where additional records may exist, which witnesses the police never interviewed, what surveillance cameras were nearby, what happened immediately afterward, and why something described one way in a police report may have an entirely different explanation.
For that reason, I often tell clients early in a criminal case that they may be one of the defense team's most important investigative resources.
The key is knowing how to use that resource properly.
A Police Report Is the Beginning of the Investigation, Not Necessarily the End
One of the first things a defendant understandably does after receiving discovery is read the police report and say:
"That's not what happened."
Sometimes the disagreement concerns something relatively small.
Sometimes the police report describes an event in a way that the client barely recognizes.
That should not automatically surprise anyone.
Police officers usually arrive after an event has already occurred. They speak with certain witnesses, receive certain information, collect whatever evidence is immediately available, and prepare reports based upon that investigation.
Those reports may contain enormously important information.
But they are not necessarily a complete account of everything that occurred.
A criminal defense investigation should therefore ask a different question:
What is missing?
That is where the client can become invaluable.
The Client Knows the History That Predates the Allegation
Many criminal cases do not begin at the moment described in a complaint.
The relationship between the relevant people may have existed for:
- days;
- months;
- years; or
- decades.
There may have been prior conversations.
Prior disagreements.
Prior accusations.
Friendships.
Romantic relationships.
Business relationships.
Employment relationships.
Family disputes.
Financial conflicts.
Custody disagreements.
Social-media interactions.
Or hundreds of communications that provide context for the handful ultimately selected for a police report.
The client may be the only person initially capable of explaining that history to defense counsel.
That history does not automatically prove a defense.
But it tells the lawyer where to look.
One of My First Requests Is Often a Detailed Client Narrative
Early in a case, I frequently ask a client to prepare a detailed written narrative of what happened.
I usually want it chronological.
I want detail.
And, importantly, I ask the client to be as objective as possible.
I do not want a document that says:
"She lied about everything because she is crazy."
That tells me very little.
I want:
What time did you arrive?
Who was there?
How did you get there?
What happened beforehand?
What did each person say?
What happened next?
Who could have seen it?
Were there text messages?
Did you call anyone afterward?
Did you take an Uber?
Were you at a restaurant?
Was there a receipt?
Were you working that day?
Did you send photographs?
Was anyone else in the home?
Did someone mention the event contemporaneously?
Where was your phone?
What happened the following morning?
Those details can generate actual investigative leads.
The narrative is not intended to become a client's trial testimony or something handed to the prosecution. It is a tool for the defense team to begin understanding the case and identifying what needs to be independently investigated.
Small Details Can Lead to Objective Evidence
Some of the most useful information a client provides initially seems unimportant.
A client may casually say:
"I took an Uber there."
That may lead to transportation records and timestamps.
A client may remember:
"We stopped at a convenience store first."
That may identify surveillance footage.
Someone may say:
"I texted my friend immediately afterward."
That may identify contemporaneous communications.
Or:
"I was at work until 7:00."
That may lead to employment records, security-badge data, schedules, coworkers, or electronic timekeeping.
Or:
"She called me several times the next morning."
That may make call records or preserved phone data relevant.
A lawyer reading a police report cannot necessarily know these things.
The client can.
That is why the initial interview should not simply consist of asking:
"Did you do it?"
The far more useful inquiry is:
"Walk me through everything."
The Client Can Identify Witnesses the Police Never Interviewed
Police investigations are not defense investigations.
Law enforcement may reasonably decide that certain witnesses are unnecessary to its investigation.
The defense may reach a very different conclusion.
A client might tell me:
"There were five other people there."
"My roommate saw us when we came home."
"I spoke to my sister ten minutes later."
"The bartender talked to both of us."
"My coworker knew where I was."
"Someone else was in the car."
"The person who made the allegation told another friend something completely different."
Each one is an investigative lead.
Some will ultimately matter.
Some will not.
But defense counsel cannot evaluate a witness whose existence the lawyer never learns about.
The client is often the person who builds the first witness list.
Digital Evidence Makes Early Client Involvement Even More Important
Modern criminal cases frequently involve enormous amounts of digital evidence.
Texts.
iMessages.
WhatsApp.
Instagram.
Snapchat.
Facebook.
Emails.
Photos.
Videos.
Call histories.
Location information.
Uber or Lyft records.
Google searches.
Dating applications.
Financial transactions.
Calendar entries.
Cloud backups.
Digital photographs containing metadata.
A client may possess relevant evidence on a device before the defense ever receives formal discovery.
That makes early preservation extremely important.
One of the things I regularly discuss with clients is the importance of not deleting potentially relevant material.
A message that feels embarrassing may be exculpatory when placed in context.
An entire conversation may tell a very different story than three screenshots.
A photograph may establish location.
A call log may establish timing.
A series of messages after an alleged incident may become relevant to credibility or context.
This does not mean a defendant should conduct his or her own uncontrolled investigation, contact witnesses, or begin messaging people about the case.
It means counsel needs to know what exists so appropriate preservation and investigation decisions can be made.
Preserve First. Analyze Second.
Clients sometimes assume that if something appears harmful, it should disappear.
That is exactly the wrong instinct.
Evidence should be preserved.
Deleting communications after learning of an investigation can create problems far greater than whatever the communication originally showed.
I generally want to know what exists, good and bad.
A criminal defense lawyer cannot develop a reliable strategy while being protected from unfavorable information.
And sometimes something the client believes is "bad" is not nearly as damaging once counsel sees the complete context.
The earlier defense counsel can understand the actual digital record, the better.
The Client May Recognize Something Important That the Lawyer Cannot
A lawyer reviewing a thousand pages of discovery may see a name that means nothing.
The client may immediately recognize it.
A lawyer may see an address.
The client may know who lives there.
A phone number may appear repeatedly.
A photograph may contain a person the defense team cannot identify.
An unfamiliar nickname may appear in text messages.
A business may be referenced.
A date may appear significant for reasons not obvious from the discovery.
The client can help translate the factual world surrounding the case.
In complex criminal matters, that can save enormous amounts of investigative time.
Clients Can Help Identify Inconsistencies
A defense lawyer should independently compare witness accounts, reports, recordings, transcripts, medical records, forensic evidence, and other materials.
But the client can frequently flag something that deserves closer attention.
For example:
"She never said that before."
"That time cannot be right because the restaurant closed earlier."
"He was not there."
"That photograph was taken a different day."
"That account belongs to someone else."
"We had another conversation between those two messages."
"That wasn't the first time we discussed this."
Again, the client's assertion does not establish that the inconsistency is real.
It identifies something that counsel should investigate.
There is an important difference.
The Defense Lawyer Still Has to Test the Client's Version
The fact that a client is an important investigative resource does not mean the client controls the factual analysis.
One of the most important parts of criminal defense is maintaining enough independence to evaluate the case objectively.
If a client tells me something should exist, I want to see whether it actually exists.
If a client identifies a witness, an investigator may need to interview that person.
If a client says a timeline is impossible, we should test the timeline.
If a client says text messages prove something, I want the complete conversation rather than selected screenshots.
Sometimes the investigation confirms exactly what the client remembered.
Sometimes it does not.
Both outcomes are useful.
A defense lawyer is far better off identifying a factual problem privately during preparation than discovering it for the first time during cross-examination or trial.
A Client Should Tell the Lawyer the Bad Facts Too
One of the worst things a defendant can do is decide what information the lawyer "needs to know."
The lawyer needs to know the difficult facts.
The embarrassing facts.
The facts the client wishes did not exist.
The prior statements.
The messages that look bad.
The witness who may contradict the client.
The evidence the prosecution has not found yet.
The criminal defense attorney's job is not to judge whether the client should have done something differently.
The lawyer's job is to understand the situation well enough to protect the client.
A problem disclosed privately to defense counsel can often be analyzed, investigated, and incorporated into strategy.
A problem revealed unexpectedly in front of a jury is much harder to manage.
The Client Is Especially Important Before All Discovery Arrives
There is often a period early in a Massachusetts criminal case when the defense does not yet possess complete discovery.
That does not mean nothing can be done.
In some cases, the client already knows enough to begin identifying:
- witnesses;
- surveillance footage;
- phone records;
- medical records;
- employment records;
- photographs;
- text conversations;
- electronic accounts;
- businesses;
- transportation records;
- financial transactions; and
- other potentially important evidence.
Some evidence is temporary.
Surveillance systems overwrite footage.
Businesses close.
People move.
Memories fade.
Phones break.
Social-media accounts disappear.
That makes early investigation particularly important.
The Client May Know Where the Exculpatory Evidence Is
An important distinction in criminal defense is that the prosecution ordinarily controls its own investigation and discovery obligations.
It is not the prosecutor's job to build the defense case.
There may be evidence that police never collected because no one told them where to look.
A criminal defense lawyer therefore needs to ask:
What evidence exists outside the Commonwealth's file?
The answer may be sitting with the client.
I have worked on criminal matters where effective defense preparation required going well beyond the police reports and asking what other records, witnesses, electronic information, treatment records, business records, institutional records, photographs, or communications might bear upon the allegations.
The client is often the starting point for identifying those sources.
A Client Can Also Help Explain the Government's Evidence
Sometimes the client does not identify new evidence.
Instead, the client helps counsel understand evidence the government already possesses.
A bank transaction may have an explanation.
A particular text may refer to something completely different than the prosecutor assumes.
A location may have significance.
An individual appearing in communications may be misidentified.
A phrase may have a particular meaning between the participants.
A defendant may recognize why certain communications are missing.
This is especially important in cases involving large quantities of digital or financial evidence.
The lawyer must still verify the explanation wherever possible.
But without the client's knowledge, the lawyer may not even know the right question to ask.
The Client Should Not Become the Investigator
There is also a critical boundary.
Telling clients that they are important investigative resources does not mean telling them to investigate the case themselves.
In many circumstances, I specifically do not want a client:
- contacting the complaining witness;
- messaging potential witnesses about what they should say;
- asking people to delete information;
- obtaining records through improper means;
- posting publicly about the allegations;
- confronting witnesses;
- trying to influence another person's account; or
- conducting social-media outreach concerning the case.
Those actions can damage the defense and, depending upon the circumstances, create entirely new legal problems.
The better approach is usually:
Tell your lawyer what you know. Let the defense team determine how to investigate it.
Independent Investigators Matter
In serious criminal cases, professional investigators can be invaluable.
Once a client identifies a potentially important witness or factual issue, an investigator may be able to:
- interview witnesses;
- visit locations;
- photograph scenes;
- locate individuals;
- obtain publicly available information;
- identify surveillance systems;
- verify timelines;
- preserve witness statements; and
- develop additional investigative leads.
The client provides the map.
The defense team follows the leads.
That division is important because it keeps the investigation controlled, documented, and strategically focused.
The Client Narrative Evolves as Discovery Develops
I generally do not view the client's first account as the end of the process.
It is the beginning.
As discovery arrives, new questions develop.
Why does this witness say this?
Do you recognize this number?
Where were you at this time?
Have you seen this photograph before?
What does this message mean?
Who is this person?
Did another conversation occur?
Was there a camera at this location?
Do you still have the original device?
The process becomes iterative.
Client information leads to investigation.
Investigation produces evidence.
Evidence produces new questions.
Those questions may lead back to the client.
That cycle is how a factual defense gets developed.
The Client's Memory Is Not Perfect, Either
There is another reason objective evidence matters.
Human memory is imperfect.
That applies to prosecution witnesses.
It applies to police officers.
And it applies to defendants.
Stress, intoxication, trauma, the passage of time, repeated conversations, and exposure to later information can affect recollection.
A defense lawyer therefore should not build an entire theory around a client's memory without testing it against available evidence.
Sometimes objective evidence strengthens the client's account.
Sometimes it corrects the client's recollection.
That is not necessarily a problem.
The goal of investigation is not to prove that the client's first memory was perfect.
The goal is to understand what actually happened as accurately as possible before major strategic decisions have to be made.
Early Client Involvement Can Shape Motion Practice
The information learned from a client can affect much more than trial preparation.
It may identify grounds for:
- a motion to suppress;
- a motion to dismiss;
- a Rule 17 subpoena;
- additional discovery requests;
- preservation requests;
- expert consultation;
- third-party records;
- witness interviews;
- digital-forensic analysis; or
- other pretrial litigation.
A detail that initially appears factual may ultimately create a significant legal issue.
That is another reason I want to understand the client's version early rather than waiting until trial preparation begins.
It Can Affect Plea Negotiations Too
Not every investigative lead ultimately becomes an exhibit at trial.
Some become leverage.
Suppose the defense investigation uncovers records that materially weaken an important prosecution witness.
That information may affect how a prosecutor evaluates the case.
A corroborating witness may change negotiations.
A timeline problem may alter the prosecution's theory.
Digital evidence may demonstrate that part of the allegation cannot be accurate.
Even if the case ultimately resolves through negotiation, the quality of the investigation can materially affect the resolution.
Good plea negotiations are often built on good factual preparation.
Why I Want Clients Engaged Early
When someone hires me for a criminal case, I do not want the client to assume that the appropriate strategy is simply:
"My lawyer will handle everything. I'll hear from him when there's a court date."
There are legal decisions for the lawyer to make.
There are investigative tasks for the defense team.
But the client frequently has valuable information that nobody else possesses.
I want the client engaged enough to help identify that information.
That can mean preparing a careful narrative.
Preserving evidence.
Providing complete communications.
Identifying witnesses.
Explaining relationships.
Helping establish timelines.
Providing records.
Answering difficult questions.
And being willing to tell counsel when something in the government's version simply does not fit.
That participation can make the defense investigation materially better.
The Client May Be the Defense Team's Earliest Resource, Not Its Only Resource
The distinction is important.
The client's account should start questions, not end them.
An effective criminal defense investigation combines:
- the client's information;
- discovery;
- independent witness interviews;
- objective records;
- digital evidence;
- forensic evidence;
- expert analysis;
- legal research; and
- careful testing of competing factual theories.
But at the beginning of a case, before all of those pieces are assembled, the client may be the person who knows where many of them are located.
That makes the client one of the defense lawyer's most important early investigative resources.
Boston Criminal Defense Attorney Patrick L. Garrity
Patrick L. Garrity is a Boston criminal defense attorney at Brad Bailey Law, P.C. who represents individuals facing serious criminal allegations in Massachusetts state and federal courts.
His practice includes pre-charge criminal investigations, Massachusetts District Court and Superior Court criminal defense, federal criminal matters, sex-crime allegations, violent offenses, firearms cases, white-collar investigations, constitutional motion practice, and jury trials.
Patrick's approach to criminal defense emphasizes early factual investigation, detailed review of discovery, identification and preservation of potentially important evidence, witness preparation, expert consultation where appropriate, and developing a defense strategy based upon the complete factual record rather than simply the allegations contained in a police report.
Every criminal investigation is different. A defendant should consult with counsel before contacting witnesses, accessing potentially sensitive records, making statements about a pending allegation, or taking other investigative steps independently.