Defense Attorney or Detective? The Investigative Role of a Criminal Defense Lawyer

By Josie Mastandrea

Josie Mastandrea, a rising junior at the University of Richmond, spent the summer of 2024 shadowing Attorney Chris Fiorentino to develop a better understanding of what the life of a criminal defense lawyer looks like. The following article is one of a series documenting the insights she derived from the experience.

 

I’ve always known I wanted to practice criminal law. As I’ve worked with Chris this summer, though, I’ve realized just how different the work of a defense attorney versus that of a prosecutor is. So, I feel like I can’t just say “criminal law” anymore. I have to choose my side of the aisle. But, how? Well, as I’ve mulled things over, I’ve often come back to whether I want to work 1 case at a time or 20. Prosecutors in district courts handle what feels like millions of cases in a day, while a defense attorney usually just handles a few.

 

I’d always been puzzled by that fact. When I used to think about the work of a defense attorney, I thought about meeting with clients, cross-examining witnesses, and of course, poking holes in a prosecution case. The poking holes seemed like the only stark difference from the work a prosecutor might do to prepare a case. What I realized was that I had never really thought about how it was that a defense attorney pokes those holes. It wasn’t until I worked on a particular case with Chris that I learned those holes come from in-depth investigations–investigations that go well beyond the materials provided by the state.

 

The Case

 

A man had come to Chris seeking representation to defend against an OUI (operating under the influence) charge. He had been pulled over, asked to take a breathalyzer test, and registered a BAC (blood-alcohol content) of 0.12. The legal limit being 0.08 in Massachusetts, he was charged with illegally operating a vehicle while under the influence. Sounds like a pretty standard case, right? But there was something unique about this client: he only had one lung.

 

The Investigation

 

After learning about his client’s condition, Chris had an interesting idea about how to approach the case. In-depth research was required. That’s where I came in. He asked me to figure out how having only one lung could impact the results of a breath test.

 

“Science might be on our side here,” he told me, “But we need something reliable, peer-reviewed, and pertinent.”

 

 

I went to work. Initially, I thought this task would take anywhere from 5 to 30 minutes. I would do a quick google search and send over a journal article. As it turns out, there is no published research on this topic. I can make that statement with absolute certainty as the “5 to 30 minute” task turned into hours of searching the web. Considering the uniqueness of the case at hand, my initial assessment was a bit naïve.

 

Regardless, I was not ready to give up just yet. Eventually, I came across a study that had researched the effects of a person’s vital capacity on a BAC test. Bear with me. I’ll try not to get too into the weeds here, but what I found was pretty interesting.

 

The Results

 

When you take a breathalyzer test, you can exhale anywhere between a minimum and maximum duration of time (approximately 5 to 20 seconds). Apparently, the higher the percentage of your vital capacity that you exhale, the higher your BAC will register. Vital capacity is just the amount of air you can exhale after your maximum inhale.

 

So, why does that matter? Well, the study I read looked at the differences in breath test results between participants with smaller and larger lung sizes. It found that those with smaller lungs consistently exhaled a higher percentage of their vital capacity, leading to higher breath test results on average as compared to those with larger lungs.

 

It’s therefore possible that someone with just one lung, who has about half the vital capacity of the average person, would register a higher BAC. That seems unfair, and potentially unfair enough that Chris could challenge the legitimacy of the breath test in court.

 

In Conclusion

 

For a defense attorney, this is the kind of work that goes into one, relatively minor case. Good defense attorneys aren’t just attorneys. They are their own investigators. Typically, these investigations go well-beyond what can be found online, too. They include combing through police reports for discrepancies or missed details, getting access to texts, phone calls, emails, interviewing witnesses, and the list goes on. Commitment and creativity are key. Though they may often have less cases and the lesser burden, allow me to speak from my very limited, personal experience when I say, the work of a defense attorney is anything but easy.