Professor and capital defense attorney Sean O’Brien, private investigator Quinn O’Brien, and mitigation specialist Dana Cook team up in this article to explain why the standard for competent defense investigation requires face-to-face, one-on-one, culturally competent client and witness interviews, and why short cuts to investigation, such as telephone calls or remote video links, are counter-productive, prone to failure, and constitute substandard work. Although the primary focus of this article is on standards that apply to capital mitigation work, the problems created by remote witness interviews are not unique to death penalty work; there are persuasive arguments and authority that the in-person interview standard applies in all criminal cases. The authors outline the professional standards for investigative interviews, the social science supporting the in-person, face-to-face interview standard, and discuss examples of cases in which deviation from these standards was prejudicial to the client. We conclude that defense team members should adhere to and defend investigative standards to decision-makers who may pressure them to resort to substandard practices in the misguided belief that doing so will quickly and cheaply produce acceptable results.
Hofstra Law Review
O'Brien, Sean and O'Brien, Quinn and Cook, Dana, Put Down the Phone! The Standard for Witness Interviews Is In-Person, Face-to-Face, One-on-One. (January 17, 2022). Hofstra Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4011414