Art. 26.044 CCP allows the public defender's office to hire "licensed investigators." Licensed investigators are not defined.
Fort Bend County is in the process of hiring 2 new investigators for the PDs office.
Two questions have come up: Should the investigators be commissioned as peace officers by an entity that can commission them, or should they be licensed as Private Investigator through DPS?
Any thoughts or help would be greatly appreciated.
John Placette, Investigator Fort Bend Co. Attorney's Office.
I would think the duties of someone investigating a crime for a defense attorney would be in direct conflict of a peace officer's duties under the penal code to investigate, report, and arrest on offenses they have knowledge of.
Defense Cops to the rescue.
Sit back and enjoy the view as they detain the municipal PD and run a search warrant on the evidence room...
Code of Criminal Procedure Article 2.12(5) list "investigators of the district attorneys', criminal district attorneys' and county attorneys' offices" as peace officers. Moreover, DA and CA investigators are given authority under Article 18.03(g)(1) to make a warrantless arrest of a person who commits any offense (including misdemeanors) other than traffic offenses committed in the DA or CA investigators' presence or view even if the investigator is outside of his or her jurisdiction. It seems clear that the legislature intended for DA and CA investigators to be licensed and commissioned peace officers.
The job of a defense investigator is not compatible with the requirements of being a sworn peace officer, nor is a public defender a law enforcement agency which can commission an officer.
While the two jobs do have some "overlap" they have entirely different objectives and utilize some VERY different methods.
As just one small example; say a defense investigator is interviewing the defendant in order to gather enough details to perform a diligent investigation into mitigating/exculpatory facts. During the interview the defendant provides exacting details on just how he committed the crime and includes details unknown to law enforcement, including the whereabouts of evidence he disposed of.
A sworn, commissioned, licensed peace officer would have an obligation to divulge that information to prosecution.
Navigating the minefield of obligations/requirements vs. attorney-client privilege, etc., would be a miserable, painful ordeal.
Example two; a defendant has a friend who wants to testify on his behalf, the friend wants to testify. As part of the defense investigation the friend is interviewed and defense investigator finds that he is going to commit perjury. A sworn officer must report the crime. Does he do it in some form of rebuttal testimony immediately after the perjured testimony? Does he report it to prosecution beforehand to prevent the crime? What conflicts would this raise?
I appreciate all the responses. Thank you.
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