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The subject of This Course Is:

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Questions, Questioning

Cardozo Law School
Course in Fact Investigation - Fact Investigation I
Philip Segal, Esq. & Professor Peter Tillers

 

The General Nature, Purposes & Scope of the (Basic) Course in Fact Investigation

"A person wholly without imagination is hard to imagine." Anon.

The general purpose of this two-semester course is to study and learn strategies for effective pretrial fact investigation.

The premise of our study of investigation is that effective pretrial investigation requires not only imagination, but also careful marshaling of evidence and careful organization of thinking about evidence. The more particularized premise of the course is that effective investigation frequently either requires or benefits from the application of a variety of distinct marshaling and analytical methods, including methods such as the construction of event chronologies, the formation of scenarios, orderly assessment of the credibility of testimonial evidence, and the marshaling of evidence on the basis of legal rules and their elements. Thus, the course acquaints students with a toolkit of such methods for marshaling and organizing evidence.

Participants in the course conduct investigations. Participants are not given simulated, or canned, investigation problems. They are instead asked to investigate real-world situations and problems--real-world problems whose "solution" is unknown to the instructor.

This insistence on "real" rather than "fake" investigation problems is important because an essential feature of the investigative process is the investigator's ignorance of many or most uninvestigated events and matters. The process of investigation is, in a very real sense, a process of discovery.


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The terrain traversed by the course is vast, but it is not unlimited. Furthermore, the course does not purport to resolve -- or even to identify -- all of the puzzles that do fall within the course's domain (i.e., general strategies for fact investigation).

The course has the following limitations:

  • The course does not attempt to examine the intricate legal rules that govern pretrial fact investigation in civil and criminal cases. So if you want to learn about matters such as the legal rules that govern the taking of depositions or the rules governing preliminary hearings in criminal cases, you are in the wrong course! Compare, e.g., Thomas A. Mauet, PRETRIAL (4th ed., 1999).


  • Investigators use an enormous array of specialized knowledge, tools, and "tricks." For example, some investigators know a great deal about the characteristics of blood spatter, automobile tires, skid marks, air turbulence, and innumerable other matters of this sort. These sorts of matters are obviously important for effective investigation, but this course does not attempt to study them. The emphasis here is on investigative strategies that are in principle applicable to any kind of case or investigative problem.


  • While the course does identify general methods of organizing information and evidence that are likely to be useful in investigation, your instructors, supervisors, collaborators, and fellow students -- viz., Phil Segal & P. Tillers -- do not claim that they have identified all pertinent marshaling or analytical methods. They also do not claim that they have correctly discerned all of the useful or essential properties or characteristics of the marshaling and analytical strategies that they think that they (with the help of many other people) have managed to identify.
Fact Investigation II, offered in the spring semester, is a continuation of Fact Investigation I, which is given in the fall semester. In the spring semester, teams of students attempt to bring to a conclusion one or more of the investigations they began the previous semester. Although the fall semester course and the spring semester course have some of the same objectives and themes, the spring semester course differs in important ways from its predecessor. In the spring semester there is more emphasis on sources of evidence beyond databases and public records; for example, there is a greater emphasis on witness interviews. More generally, in the spring semester there is less emphasis on exploratory investigation and there is more emphasis on bringing an investigation to a successful conclusion. For this reason, in the spring semester substantially more attention is devoted to the relationship between the steps taken during investigation and matters such as (a) the legal requirements governing the admissibility of evidence in settings such as trials; (b) the extent and the range of the evidence bearing on legally-material factual issues and hypotheses; (c) assessment of the probative value of evidence and the credibility of witnesses; and (d) the persuasiveness of the evidence that may be submitted to a trier of fact or audience such as a judge, a jury, a legislative committee, a corporate executive, or the public.
 

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