Protocols for Memorializing Your
Investigation
Kirsty Davis
The Gulf Region Advocacy Center
April 2011
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Gulf Region Advocacy Center
OVERVIEW
I. Protocols That Must Be Established
II. Considerations in Establishing Protocols
III. Universal Protocols
IV. Suggested Protocols, depending upon
Jurisdiction
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I. Protocols Must Cover
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Taking notes (use of other media)
Disclosures to lay witnesses
Taking Written Statements
Memorializing information
– Format
– Distribution
– Work product
• Sharing Information with Experts
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I. Protocols Must Cover, cont’d.
• Unsolicited admissions from client
• Undocumented prior acts of violence
• Uncharged criminal conduct
• Client’s access to discovery
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II. Considerations in Developing
Protocols – The Law
• Reciprocal Discovery at Trial
• Disclosure of Statements of Testifying Lay
Witnesses
• Disclosure of Information RELIED UPON
by Testifying Experts
• Disclosure in Post-Conviction
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II. Considerations in Developing
Protocols – Case Development
• Impact on Witness & Client Relationships
• Stages of the Investigation
– Preparation, withholding judgment, avoiding
paralysis
• Organizing, Digesting, Processing
Information
• Sandbagging Your Own Defense
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Discovery Issues In Arizona
• A.R.S., Rules of Criminal Procedure, Rule 15.2.
Disclosure by defendant:
• c. Disclosure by Defendant; Scope. Simultaneously with
the notice of defenses submitted under Rule 15.2(b), the
defendant shall make available to the prosecutor for
examination and reproduction the following material and
information known to the defendant to be in the possession
or control of the defendant:
(1) The names and addresses of all persons, other than that
of the defendant, whom the defendant intends to call as
witnesses at trial, together with their relevant written or
recorded statements;
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Rule 15.2(e):
• Rule 15.2(e), provides for additional
disclosure made upon request and
specification; subsection (2) provides for
“Any completed written reports, statements
and examination notes made by experts
listed in Rule 15.2(c) (1) and (2) of this rule
in connection with the particular case.”
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Gulf Region Advocacy Center
Rule 15.4:
• Rule 15.4 provides general disclosure rules.
Subsection (b)(1) exempts work product from the
parties’ disclosure obligations: “Work Product.
Disclosure shall not be required of legal research
or of records, correspondence, reports or
memoranda to the extent that they contain the
opinions, theories or conclusions of the
prosecutor, members of the prosecutor’s legal or
investigative staff or law enforcement officers, or
of defense counsel or defense counsel’s legal or
investigative staff.”
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Gulf Region Advocacy Center
Rule 15.4 Caselaw:
• Rule 15.4, Hickman v. Taylor, 329 U.S.
425 (1947)(recognizing work-product as
protected from discovery).
• State ex rel. Corbin v. Ybarra, 777 P.2d
686 (1989)(retained experts are part of
counsel’s “staff” for purposes of Rule
15.4(b)(1)).
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Only Trial Cases:
• Rule 15 only applies to trial cases,
not postconviction cases. Canion v.
Cole, 210 Ariz. 598, 115 P.3d 1261
(2005).
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III. Universal Protocols – Statements
• Do not routinely take statements
• Team discussion about specific witnesses
and issues
• Don’t put everything in statements
• Early statements minimal, limited to what
is necessary and verifiable
• If must take statement on uncertain info,
separate from other information
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Gulf Region Advocacy Center
III. Universal Protocols -- Memos
• Labeling and handling of memos as
confidential client communication and work
product
• 48 hour rule: This is not aspirational--this
is a maximum time. The longer you wait
the more you forget. Also, it is critical that
everyone on the team know what is being
done on the case.
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III. Universal Protocols -- Memos
• Memos should include:
– The witness’s relevance
– Witness background (address, physical description,
directions to the witness’s home)
– Circumstances of the interview
– Direct quotes where possible
– Assessments and conclusions
• depends upon discovery rules and decisions regarding team
communication; often a separate memo.
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IV. Suggested Protocols
• Put impressions or observations (drunk,
disheveled, shifty, angry, hostile, unclean,
biased) – in a memo to counsel titled
“strategic considerations.”
• Recite your identifications and disclosures
in memos
• No written reports
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