Rikki Glen and Associates

Articles

Publications

"Effective Use of A Private Investigator in a Litigation Practice"
by Rikki Glen and Jeff Scott Olson, Esq.
printed in the November 2002 The Legal Investigator and the Wisconsin Academy of Trial Lawyers Spring Seminar March 2002 program.

"Interviews, The First Line of Defense"
Published in the "Legal Investigator"
December 2007 issue and the Summer 2008 issue of the "Informant"

"1998 Disappearance Still a Mystery"
by Doug Moe
Monday, 15 November 2004 | http://www.kristinekupka.com

INTERVIEWS: THE FIRST LINE OF DEFENSE
By Rikki Glen

During the past decade, there have been significant developments in the fields of law enforcement and criminal defense that assist both the prosecution and defense sides. Along with these developments, the criminal justice community has witnessed a growing professionalism and sophistication in the private investigation industry. This has been accomplished by better training and education. Criminal defense attorneys now commonly rely on investigators for more thorough and professional investigations which increasingly are linked to greater success for the defense. Clearly the most essential element of any investigation is the witness interview.

The most important witness is the defendant. Although an attorney routinely conducts an initial client interview, it is important for the investigator to also do an in-depth interview. The reason for this is to get a well rounded picture of the client from two points of reference. The attorney and investigator in some instances will elicit different information. Some investigators are better equipped to communicate with a client. The attorney can appear to be too solemn and even intimidating to a person who is facing the possibility of prison or worse. As a general rule, the communication between defense counsel and his or her agents retained to assist the defense (including an investigator) is protected under the attorney-client privilege and work product doctrine.1 The extension of the privilege to agents of the defense counsel is commonly known as the Kovel Privilege.2

It is imperative that the investigator obtain the defendant´s personal information, going back as far as possible. If the charges revolve around any violent acts or sexual misconduct or assaults it is important the defendant reveals any past similar behavior. This includes even acts that were charged and were eventually dismissed. Even if there was an accusation that was not reported, that is information that needs to be provided to the defense team. Prosecutors are tenacious, and any hint of past bad behavior will be thoroughly investigated. The defense attorney does not like surprises. It is crucial that the attorney is made aware of all facts surrounding his client, the bad facts as well as the good.

Determining which witnesses should be interviewed should be a collaboration of defendant, attorney and defense investigator. A popular theory is not to interview a witness who has given a prior statement to law enforcement until the police reports have been obtained, reviewed, compared with other statements for inconsistencies.3 Sometimes an investigator will be brought on board by an attorney before any charges have been made. In these instances, where there may be little or no information available, the investigator must rely on the client for viable avenues to seek out potential witnesses.

This pre-criminal charge investigation is an important initial step in gathering any information from possible witnesses before they become inhibited by the prospect of having to testify in a trial. In other words, witnesses tend to be more open when there is not a police investigation occurring at the same time. In many cases people "don´t want to get involved" when an investigator is trying to assemble exculpatory evidence. But frequently these people are already involved. This is especially true when the person has previously talked to law enforcement. It is important to convey to them that their help may prevent a trial down the road

Friendly witnesses can be interviewed first, especially if they have information about the accuser. Interviewing friendly witnesses first also helps the investigator get a better sense of the intricacies and personality of the case. This helps later to fashion a clearer line of questioning for other, perhaps recalcitrant, interviewees. In some instances, depending on the circumstances of the case, the alleged victim4 is interviewed next. However, if an investigator wants a chance to talk to the accuser, it is more likely this will be possible if friends and acquaintances have not been contacted beforehand. This way the investigator will have the element of surprise.

Interviews with prosecution witnesses and the accuser should be cold calls for the best results. It is more difficult to refuse an interview if the investigator is face to face with the witnesses. Witnesses friendly to the accuser should not be made to think that the accuser is a liar. Letting the person know that the investigator is searching for the truth and not for "dirt" on the accuser, may put the witness at ease, since presumably he is interested in the truth also. The decision of whether to obtain a written statement is usually up to the attorney. However, the attorney may leave that decision up to the discretion of the investigator, depending on what kind of information the witness has to offer.

The following example typifies the use of the pre-charged investigation.5 A popular high school coach in a small town was confronted by the father of one his students. The father accused the teacher of some kind of sexual misconduct. Immediately the teacher contacted a lawyer. The lawyer called a meeting with the client and the criminal defense investigator. The client related everything that he knew and had heard about the allegations. A list of likely friendly witnesses was made. In this case a police investigation had already begun, and a list of people who had talked to police was assembled. The reasons for possible motives to fabricate the accusation were discussed.

A decision was made among the three that the interviews would begin with people who were deemed friendly to the client and would have information to share. These witnesses were mostly teachers and former students. The individuals who talked to law enforcement also needed to be contacted to determine what specific allegations had been made. The defense was able to glean information just by learning the types of questions that had been asked of witnesses.

In this case, contacting witnesses before charges were brought proved to be a fortuitous decision. We were able to undermine the basis for the upcoming charges. We planned and put forward a defense weeks before the criminal complaint was executed. Charges were dropped against the coach before the trial date.

The timing of the investigation is solely up to the defense attorney. Early fishing expeditions, while usually useful, can turn out to be less productive, because without a Criminal Complaint there is no sure way of determining what is being charged so it is difficult to know what questions to ask. The Criminal Complaint also contains a summary of the evidence the police used to charge the crime. This may include names, dates and places. It is likely that an investigator will only get one chance to interview an adversarial witness. If the investigator uses the one and only opportunity to approach a witness and is depending on misinformation or is lacking crucial information, it can be detrimental to the defense.

Sexual assault allegations often are" he said, she said. "When there are no witnesses it is essential to do a background check on the accuser. The determination of guilt often comes down to who is the most credible. A criminal and civil check should be done on the accuser. These can provide additional witness names which can be helpful. Criminal records will help determine the veracity of the accuser. Civil records should also be checked. Special attention should be given to Temporary Restraining orders that have been filed by or against the accuser. Transcripts of the Restraining Order Hearing will provide detailed accounts and names of potential witnesses. Thorough examination of all legal documents will provide valuable information about the accuser.

Background checks on potential witnesses are a necessity in order to help establish whether their testimony will be credible. Defense witnesses´ arrest and conviction records should be closely scrutinized. The criminal defense attorney needs to be informed of any information that might precipitate a witness being impeached.

It takes experience and training to become adept at interviewing witnesses. The interviewer must develop a rapport with the interviewee and utilize good listening skills. Make it a rule to conduct your interview as though it is your one and only chance to obtain a statement. Even friendly witnesses can change their allegiance. It is essential to lock the witness in before he/she shifts their loyalties. As investigators, we are at a disadvantage to law enforcement as it pertains to witness cooperation. A uniform and a badge represent the "good guys" to many. Investigators have no authority to compel co-operation so it is necessary that we use our wits and charm to gain the trust of the potential witness. When approaching either friendly or adversarial witnesses, it should be with sensitivity and sincerity, but without compromising our resolve.

1: Brandon A. Perron Uncovering Reasonable Doubt The Component Method Morris Publishing 1998
2: United State v Kovel, 296 F2d 918 (2d cir.1961)
3: John M. Lajoie, CLI Criminal Defense Witness Interviews and Statements The Legal Investigator, November 2002, p 34
4: Defense Attorneys often do not like to refer to the accuser as the "victim" since this label implies that the accuser is telling the truth.
5: State of Wisconsin v Joseph Parish 2006CF000238 (Dane County Circuit Court)

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1998 Disappearance Still a Mystery
By Doug Moe

It was right around the time Kristine Kupka moved from Madison that Rikki Glen, who was working here in retail management, decided she needed a career change.

Kupka left Madison in 1992 - having lived here a decade - and eventually wound up in New York City. By October 1998, Kupka was 28 and a senior at Baruch College in New York. She was two months from graduating, and her grade point average was 3.97. She was also pregnant.

Glen, meanwhile, had talked to an attorney friend about how miserable she was in the retail business. "Why don't you try being a private investigator?" he said. The attorney said he would give her some work, and as long as she was only working for one person she didn't need a license. She could give it a try and see what she thought.

"I liked it, I liked it a lot," Glen said later, and by October 1998 she had her license and was working for a number of attorneys, interviewing witnesses, helping them put their cases together.

Oct. 24, 1998, was a Saturday, and Kristine Kupka was going to see the father of her unborn baby for the first time in some weeks. The man had been one of her instructors at Baruch. He had neglected to tell her he was married. When Kristine told him she was pregnant, he had begged her to have an abortion. Kristine, though, was determined to have the baby.

The Saturday meeting was supposed to be a chance to talk and maybe find common ground. The man picked Kristine up at her apartment in Brooklyn about 11 a.m.

It was the last time anyone saw Kristine Kupka. She'd left a voice mail for her sister, Kathy, right before going out that morning: "I'll call you later this afternoon. See ya."

The unborn baby's father told police he had dropped Kristine at a health food store near her apartment about 3 or 4 that afternoon.

The disappearance of Kristine Kupka was big news for a time. Kristine had a brother and sister still living in Madison, and they hosted a fund-raiser at the Tornado Club to help fund the ongoing search. That was in December 1998. In January 1999, New York magazine had Kristine's picture on the cover and the headline: "What Happened to Kristine Kupka?" The subhead said this: "Ten weeks ago, she went off with the father of her unborn child. He came back. She didn't."

Kristine's family was convinced the father knew what had happened to Kristine. As weeks passed with no word, the fear he had harmed her grew. The New York magazine story said police considered the man a strong suspect, but quoted a cop saying you can't bust someone for being the last person to see somebody alive. They needed something more, a break in the case, and they weren't getting it.

Months turned into years. The father is now a dentist living in Florida. Kristine's name is pretty well off the media radar. There are other missing people, more sensational cases, though this was sensational enough.

Rikki Glen is now an experienced and sought-after private investigator specializing in working for criminal defense attorneys in Madison. "But I'm still always looking for ways to get better," Glen was saying Sunday. It was to that end, earlier this month, that she attended a seminar in New York City called "The Art of the Investigation."

The seminar was taught by prominent New York private investigator Gil Alba. Alba had advertised the seminar by stating it would be an in-depth look at one of his most intriguing cases.

It turned out to be the case of Kristine Kupka. The family had turned to Alba in desperation as the police investigation grew cold.

The seminar was Nov. 5. Alba talked about his own investigation into the case, but he also encouraged the participants to ask questions and develop theories of their own about what might have happened to Kristine Kupka.

Glen, who specializes in criminal defense, found herself wondering who else could have been involved, and she came up with Kristine's previous boyfriend, a man named Nick, who had seemed obsessive about her.

She was discussing Nick as a suspect when there was a knock on the door and a guest walked into the seminar. It was Nick. "He answered our questions and seemed really sincere," Glen said. Kristine's sister Kathy also made an appearance at the seminar.

Conspicuous by his absence, of course, was the one man who nearly everyone thinks knows what happened. The last one to see her alive. Rikki Glen came away from the seminar and back to Madison thinking that, too, though no one can say for sure.

It turns out that the man's family owned a building that, at the time of Kristine's disappearance, was undergoing significant construction. A whole new section of concrete was poured. There is talk among the investigators and Kristine's friends and family of trying to buy that building, which now has a new owner. The truth, they think, may be buried there somewhere.

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Rikki Glen and Associates