The law student on the criminal law path will probably take the necessary doctrinal courses to learn the substantive and procedural law, a trial advocacy course to get practice with direct and cross-examination, a clinic to get in-court experience and, perhaps, a negotiations course (he’ll need those skills to plea bargain effectively). But chances are, he’ll never take a course on how to investigate a criminal case. It’s probably not even offered. You don’t hear much about the power of investigations in criminal work when you’re in law school, but if you practice as a criminal defense lawyer, you realize quickly that cases are won and lost on investigation as frequently as they are won and lost on the law. The rest of the world has gotten an insight into the critical role of investigation via Serial. And we’re learning that there are a lot of amateur sleuths out there with an appetite for investigating crime. So should we crowd-source criminal investigation?

Yes. And no. Or, I should say, it depends.

Once you’ve exhausted your appeals, gathering as much information as possible about the facts of the case makes a lot of sense. As Rabia Chaudry mentioned during a sit-down at the law school a few weeks ago, Adnan Syed, the defendant at the heart of Serial, did not have much to lose from reaching out to a journalist, who would unearth each stone. If you’ve burned through your appeals and you’re sitting in prison, waiting to grow old or die, it seems to me that the potential reward may just outweigh the risks.

But the problem is that investigation is most critical before trial. Imagine, for instance, if Adnan’s attorney had found evidence before trial that there was no payphone at the infamous Best Buy, the scene of the crime? Or imagine that she discovered that indeed there was a telephone, but it was in the middle of a heavily traveled vestibule where anyone could hear the caller’s conversation? Either way, she would have had some great fodder for cross-examination that could have changed the course of the case.

And that, of course, is the appeal of crowdsourcing to defense attorneys. Investigation is incredibly important, but also incredibly time-consuming. Staking out a witness is fun for the first hour, but then it’s just time away from your other cases. Finding a surveillance video is easy, unless the person with the video is uncooperative and then it takes lot of sweet talk (and sometimes a subpoena) to get what you need. And so the idea that a hundred people on Reddit might take that burden from you is alluring. The problem is—what if the video they find reveals your client committing the crime he was charged with? What if sharing information with an app that doles out investigation to random users means divulging client confidences? What happens if you need to call one of the users to testify at trial about his findings and he refuses?

Following the success of Serial, and the possible success of the crowd-sourced investigation it delivered, crowd sourcing seems like a great thing. And it may be. But defenders—at all stages of a criminal case—should approach this invention with cautious optimism and a lot of advice from their in-house ethics counsel.

Lawrence Marshall Weighs In »
Robert Weisberg Weighs In »
Ron Tyler Weighs In »