ANOTHER KEY TOOL FOR THE CRIMINAL DEFENSE INVESTIGATOR
Exculpatory Declarative Statement (EDS)
In criminal defense investigation, there are standard or average tools and techniques typically used during the course of investigation. There are also other supplementary tools that many investigators or attorneys not often use...an EDS is one of those tools. This tool can and does make cases evaporate via Dismissal.
The system is clogged with many cases where the alleged victim is either not really a victim, or where the AV does not want to pursue prosecution. Certain of those cases (more than you might think) may be open to obtaining an EDS from an alleged victim...but it will take an experienced investigator with an effective process to "seal the deal".
The Bones of an EDS:
Determine the Position of the AV
Where does the desire of the AV fit into the possible outcomes of the case? This choice can be from "I just want the case to go away" to "I want them to go to prison until they are dead". With TLC, an experienced investigator can, through AV trust building, determine the AV's position.
It must then be determined if this case really will benefit from the efforts.
Statement Construction
The investigator must aid the AV in the creation of an effective statement. The statement must always be Declarative in structure and cleanly driven toward the clarification of the charges and the incident reports.
In most cases, the AV must take some form of responsibility for the incident through identifying contributing circumstances such as emotion, past personal abuse or experiences, triggers, alcohol or drugs, mental health issue, or any other things that may have contributed to the incident. Again, the AV must declare these factors by stating "I did, I thought, I forgot, I said, I wanted, I was, etc" in order to point out their position and perspective of what really happened and what their actual role was.
Any AV has the option to clarify past events.
There will be a Summary section at the end where the AV typically states something like "because of the above statements, I am requesting that this case be dismissed", if this is truly the wish of the AV.
Interview Format
The statement is formally written by the professional investigator but fully in the words of the AV. Both the Investigator and the AV will sign and date this document.
Legal Fine Print
There must be "fine print" that addresses the framework of the interview and any victim's rights or other necessary legal notes and stated by both the AV and the Investigator. This indeed is a legal document.
The AV must state that "I hereby declare that the above statements are true to the best of my knowledge and remembrance."
The Investigator must also state that "the AV freely agreed to speak with me about this case, and did not wish to have an attorney or victim advocate present. The AV was given an opportunity to review and edit each statement of this document for clarity and accuracy."
EDS Value to the Case
The final signed statement will typically be presented to the DA with a non-formal request for dismissal based on the fact that the AV is no longer supportive of the efforts of the prosecution (and by now would not make a good victim or witness).
If the DA for some reason decides to move forward with prosecution, the EDS, written effectively, may also be a solid piece of mitigation later in the case.
Is This a Great Tool?
Yes it is. Many attorneys and firms have never used a tool like this and have not experienced the number of cases that may be dismissed DIRECTLY due to these statements.
This tool is not for every case or every investigator. It take experience, compassion, and finesse to deliver the ball over the goal line, but when it get's there it is a great feeling! Remember, a dismissal is worth having a party over!
For more information on the process and templates for an EDS, just contact us!