Strengthening the Sixth Amendment, Part 1: Defense Investigator Use

Read Part 2 and Part 3 of the series

Justice for All Grant: Enhancing Sixth Amendment Protections

Funded by the Bureau of Justice Assistance, the Justice for All (JFA) Training and Technical Assistance (TTA) grant provides TTA to ensure that states and local governments have the capacity and tools necessary to meet the obligations established by the Sixth Amendment. The National Association of Criminal Defense Lawyers (NACDL) has partnered with the Association of Prosecuting Attorneys, the National Center for State Courts (NCSC), and RTI International. Each partner brings to the grant differing areas of expertise and a wealth of experience in providing TTA and programmatic assessments in collaborative environments to a full range of jurisdictions and criminal legal systems.

The Sixth Amendment guarantees rights to criminal defendants, including:

• A fair and speedy public trial
• An impartial jury
• Legal representation
• Awareness of charges
• Knowing one’s accuser(s)
• Having and confronting witnesses during a trial

Yet concerns exist that these rights are not being ensured everywhere consistently, particularly for persons of color. Through the JFA TTA grant, RTI has been working with grant partners to address Sixth Amendment protections in several jurisdictions across the country.

Since the JFA project started in 2019, RTI has applied our extensive research and evaluation expertise in court systems to guide local systems in using data to examine trends in their communities, identify areas to strengthen their data infrastructure, and identify inequitable practices. The collaboration across the four partnering agencies (broadly focusing on defense, prosecution, courts, and research) has promoted a holistic approach to TTA, which acknowledges that challenges to Sixth Amendment protections cannot be resolved by one entity or solution alone. Working with local communities has increased our expertise, knowledge of emerging and critical issues, and areas for future research and evidence-based solutions. 

Recommendations emerging from these JFA projects can be extrapolated to communities across the United States and can be used to inform meaningful policy changes to strengthen Sixth Amendment protections– which are critical to achieving an equitable and effective criminal legal system.

This series will highlight three JFA projects, the first of which is an assessment of investigator use by defense counsel in Texas.

Identifying Defense Investigation Challenges in Texas

Investigation is a critical and core component of defense representation. As the ABA notes, “Defense counsel has a duty to investigate in all cases, and to determine whether there is a sufficient factual basis for criminal charges.” This duty exists even when the evidence appears overwhelming, the defendant admits guilt to their lawyer or suggests no investigation be done, or expresses a desire to plead guilty. 

Texas reported no expenditures for defense investigators in 54% of its counties in 2020, according to a report released by the Texas Indigent Defense Commission (TIDC). Although previous studies have identified some of the challenges and barriers to using defense investigators, TIDC sought to identify the most prominent challenges impacting the underutilization of investigators. RTI and NACDL worked together to conduct a study assessing why this is an issue and to offer recommendations for improvement.

Study Methods

NACDL and RTI developed two surveys: one for defense attorneys and another for current defense investigators. The team received responses from 380 defense attorneys regarding their background, skills, and how they use investigators in criminal cases. The team also received responses from 171 defense investigators regarding their work, skills being utilized or underutilized, and barriers encountered in participating in court-ordered cases. Separately, RTI contacted the courts in 10 counties identified as having reported no or low expenditures for defense investigators to conduct interviews with judges.

Key Outcomes from Texas Defense Investigator Study

Survey and interview results revealed that the low rates of using defense investigators for indigent cases is a pervasive problem in Texas. Specifically, the study found the following:

• Many courts in Texas are limiting investigators to a threshold of reimbursable hours (e.g., 10 hours). When additional hours are requested, they are provided in limited amounts.
• Compensation for investigators is often delayed by months or years, which discourages investigators from participating in court-appointed cases.
• Instructions given to investigators are often unclear, and deadlines are not always clearly defined.
• Overall, judges reported being satisfied with the use of investigators in cases and the compensation structure, but they added that they were not typically involved with the payment process.
• More than half of all investigators disagreed or strongly disagreed that they receive adequate training (52%) or adequate mentoring (54%).

Recommendations for Expanding Defense Investigator Access

Based on information gathered from surveys and interviews, NACDL and RTI recommended the following improvements:

• Shift the review and approval of requests for defense investigators and the payment for investigator services from the judiciary to public defense service providers (and improve compensation practices). 
• Increase the hiring of investigators for misdemeanor and juvenile cases, and encourage early access to investigator services for all cases. 
• Bolster efficiencies by combining jurisdictions’ resources and developing hubs for defense access to investigators, and provide better training for investigators.
• Identify areas of “investigator deserts” and promote greater access to investigators in these regions. 
• Develop specialized grant opportunities to facilitate implementation of these recommendations.
• Provide regular training to investigators, defense lawyers, members of the judiciary, and communities on the role and importance of defense investigators in indigent cases.

Read the full report here.