The day after we released our February commentary (www.DeathCaseReview.com/afi-llc-blog/your-rights-and-dignity-afi-llc-february-2022), we were provided this news story about a bill in the Colorado legislature with this purpose – “Colorado hospital visitation rules often keep families from dying loved ones during the pandemic. Is there a better way?” (www.denverpost.com/2022/02/14/hospital-visitation-during-covid-19-colorado-familiy). The bill – Health Facility Visitation During Pandemic - Concerning visitation rights at health-care facilities – is at https://leg.colorado.gov/bills/SB22-053. it was assigned its first committee – known as the ‘kill committee’ in late January, and still sits unheard with no activity. We continue to monitor this bill and plan to testify at all hearings. We ask for you to send your support of the bill to the sponsors, as well as committee members. We have also been contacted by a nearby local newspaper for a story, which is expected to be published soon.
We continue to support SB22-053 “Health Facility Visitation During Pandemic - Concerning visitation rights at health-care facilities” (https://leg.colorado.gov/bills/SB22-053). We continue to monitor this bill and plan to testify at all hearings. We ask for you to send your support of the bill to the sponsors, as well as committee members. This undignified injustice must end and rights restored. One other bill we supported for related personal reasons was the patient’s rights to choose off-label medications. This died in the first committee without being heard. We have also been contacted by a nearby local newspaper for a story, which is expected to be published soon.
We continued monitoring SB22-053 “Health Facility Visitation During Pandemic - Concerning visitation rights at health-care facilities” (https://leg.colorado.gov/bills/SB22-053). However, after passing the full state Senate, it was assigned its first House committee – State, Civic, Military, & Veterans Affairs – another ‘Kill Bill’ committee and where it has sat unscheduled since the end of March. We appreciate your support and regret the bill appears to die in the state House without a hearing in its first committee – the legislative session ends 05/12/2022. This, after passing the Senate by 75% in favor. This, like other past bills for the rights of patients and families, is a disgrace to those who find their power more important than the rights, love and dignity of those dying and their loved ones. One party has been responsible for this, and the continuing events of 2020. This undignified injustice must end and rights restored. One other bill we supported for related personal reasons was the patient’s rights to choose off-label medications. This also died in the first House committee without being heard. This indignity has ran so deep, our interview for a human rights story (in February) by a nearby local newspaper – with whom we’ve had a multi-decade relationship with has decided to table the story as having no public interest.
The legislative session ended 05/11/2022 and we expected this bill to die unheard in the House. We are pleased to report we learned this bill was scheduled to be heard before the House State, Civic, Military, & Veterans Affairs Committee on 05/09/2022. We submitted written testimony and were able to listen to the heartbreaking testimony of others - one similar to our own, another their two-year son died alone, and others were admitted for non-COVID reasons, tested positive and then separated from their families to die alone; one did recover from a coma and his story was shared - because he was a doctor, his wife was with him the entire time. Two doctors testified of how importance family presence and interaction is. We also learned in 2020 and last year very similar bills died - some of the same Representatives voted no, until they heard these personal stories this year (and, in our opinion - the irreversible injustices have been done). This passed the Committee, then the following Appropriations Committee, and then the full House. It is on the way to the governor to sign or veto. Although we are pleased to see a bill pass and should become law - we are concerned the flurry of amendments in the House changed the bill to allow too many times a family and patient could still be denied. On a positive note, if it becomes law, this will prevent the destructive ad hoc policies of healthcare systems - but still gives them too much ability to set restrictive policies. It might be a win, but with politics as usual - its not the win it should have been. On that note, the only opposing testimony at all hearings was a state hospital association - a group which wants the CDC, NIH, and Congress to set federal policy - not state policy. One Representative pointed out this has been the problem since 2020 - no individual assessments, only blanket assessments by the NIH and CDC. In all committees - only the hardcore supporters of the events and destructive policies of 2020 voted no.
Parallel Death Investigations
A ‘parallel’ investigation is a private investigation concurrent to an official investigation – this may be civil or criminal, and may involve motor vehicle collisions, missing persons, serious bodily injury and death – just about any type of investigation.
Q - I am looking for a retired homicide investigator in to run a parallel investigation to a current law enforcement investigation into a death. The client suspects it is a homicide but law enforcement may not be agreeing with that assessment.
A - Parallel doesn't work. With an open case there is too much unknown information and evidence. Also putting the cart before the horse - first see if they determine homicide or other (just because client suspects something doesn't make it so, or that law enforcement won't find what they suspect). Having done hundreds of family questioned deaths – it is best to wait and see what the official findings are, then get their evidence to know what to work with. Also, if it's homicide a parallel investigation could taint a successful prosecution.
Why? In July 2015 Karen wrote an article addressing this and other related client issues – “Investigating Without Playing into Drama”…
As investigators we are surrounded by different types of drama. It might be cheating drama, murder drama, suicide drama, trial drama; insurance fraud drama and the list could go on and on. You, as an investigator understand the picture. What we, as level headed, fact finding, responsible investigators should strive for, is to down play the drama of clients and never create or feed into the drama. There isn’t much to watch on television now except drama filled reality shows, to include judges, investigators, police officers and just about any topic you want to name. Google reality TV and you will be provided with numerous websites for your viewing pleasure.
-- Continued at www.deathcasereview.com/afi-llc-blog/investigating-without-playing-into-drama
There are times a concurrent, or parallel, investigation is warranted – suspected civil rights violations is one common example. However, those times and reasons are rare. Most often the request is because there is a strong belief 1) the decedent would not cause themselves harm; and 2) the decedent’s significant other would. Our process is concerned with two things: 1) determining the Manner of Death by the evidence; and 2) a person is not wrongfully charged or convicted.
Let’s talk about the issues with the parallel investigations, and general family questioned death investigations. First, we are very passionate about helping families find answers to the traumatic deaths of relatives – often parents losing adult children to suicide. No parent should bury a child, at any age. We strive to find these answers, and no matter what the evidence tells, answer the family’s questions and help them pursue any course of action the evidence supports.
Conducting a parallel investigation itself may not be a bad thing, and may be necessary. For example, a motor vehicle collision is very common. If reported by the injured party to an attorney, the attorney will immediately have their investigator begin to gather the facts and document the scene, and obtain all official records, reports, and photographs. If the official investigation is active, or filed by the prosecution, the access to the official investigation will be limited; this does not prevent an independent investigation. At times, working with consent of the prosecution, some information may be disclosed for the purposes of determining liability in the civil litigation. It is likely the official investigation and any adjudication will be completed before the civil litigation has been filed, which will open up the official records, reports, and photographs (and videos). Missing persons, which is not an area our agency specializes, will be concurrent to the official investigations, and often in cooperation. If the official investigation closes without finding the missing person, the private investigation may continue. In both of these types of cases, and many others, there may be limited access to official investigation information. This access will be limited to prevent jeopardizing the official investigation, and also any arrest and prosecution. Serious bodily injury investigations include motor vehicle collisions, and may missing persons, and these may also become death investigations. The parameters are the same – except the death may further limit available information, and any independent investigation.
This article is more specifically about a family questioned death – or equivocal death investigation – involving their loved one, and in which they suspect homicide vs. most commonly a suicide or sometimes an accident.
The loss of a loved one cannot be comprehended by those not part of the loss, and even then, each is different. One cannot know the loss, grief and pain. To understand they are experiencing these range of emotions is possible. These may change over days, weeks, months and years – and they never go away. Answers and closure is important, and may be delayed due to the nature of the death, and particularly if any suspected criminality is involved. We are often contacted immediately, within weeks, of a death by a family looking for answers. There are several reasons – the official investigation is taking too long, which may be true or perceived; there is a lack of communication from the official investigation, which is too often; and this may include insufficient communication. There are no right or wrong answers to these concerns, and we will explain to families what may be involved in the official investigation. In fact, it is why we wrote a short book, “A Survivors' Guide to Understanding Death Investigations” at www.UnderstandingDeathInvestigations.com. This is not about conducting any investigation - it is a short book about the process of the official investigation, and is intended only to answer these questions and provide a better understanding.
Are parallel investigations in questioned deaths recommended? No. We are asked this frequently, by families and other investigators. The purpose is commendable – to have answers and closure. However, there are numerous reasons one is not recommended, and reality, possible. These include: 1) the official investigation may conclude with the answers and closures for the family; 2) the important evidence of records, reports, and photographs will not be available until the case is closed and, if charges, adjudicated; and 3) any independent investigation may inadvertently jeopardize potential charges and adjudication – including wrongful accusations, arrest, and conviction. Let’s look at each of these, and all are equally important.
The Official Investigation May Conclude with the Answers and Closures for the Family
This concern often begins with conversations and communications in which law enforcement responded to an ‘apparent suicide’ or tells the family indications are suicide – and this before any autopsy or detailed investigation is started. We understand this is concerning. Most often these are misused words and phrases in reports. In our work with law enforcement, including coroner / medical examiner offices, we strongly encourage the same responses we were trained with – instead of responding to an ‘apparent suicide’ it is more accurate to respond to an ‘unattended’ or ‘suspicious’ or ‘unknown’ death scene or reported incident. Instead of ‘indications’ of any Manner of Death (Natural, Accident, Suicide, or Homicide) communicate these are unknown – Undetermined – until all investigations are complete. These will include any law enforcement agencies, coroner / medical examiner offices, and ancillary agencies (i.e. arson investigation). Too often we have heard other investigators, private and law enforcement, say the family needs answers and they are just telling them what is obvious or known. This is far from the truth – nothing is known until concluded; and even then, may still leave unanswered and other questions.
The Important Evidence of Records, Reports, and Photographs Will Not Be Available Until the Case is Closed and, If Charges, Adjudicated
We are often asked if we can look at a death certificate or autopsy report, or a photograph or two, to determine what did and did not happen, if a death is as reported and certified. No, we cannot – and no one should. To do so without all the other evidence is a disservice to the family, defendant, or any person associated with the death. Our analogy is reading an autopsy report without the underlying evidence is the same as reading a media story without knowing their source information. How often is a media story first reported and later, maybe, corrected? Not often, or at least not in the same manner as the headlines used to capture the event. We cannot be part of this. Unfortunately, not all records, reports, and photographs are available after the official investigation is concluded. This may be by statute or policy of closed records, these were not utilized as part of the investigation, maybe there was no autopsy, etc. In these cases we do our best to determine the competency of the official investigation, the official findings, and any answers, conflicts, or concerns which were concluded and determined.
Any Independent Investigation May Inadvertently Jeopardize Potential Charges and Adjudication – Including Wrongful Accusations, Arrest, and Conviction
Just as a family does not want the suspicious death of a loved one to go unanswered criminally, the same balance applies to making sure wrongful accusations don’t lead to wrongful convictions. At a time of loss emotions are high and varied from grief to anger. If there are any interrelationship issued of a lost loved one to their significant other, or if there are intrarelationship issues with parents and family members, there will be suspicions and accusations. Most often we see a death ruled a suicide, then a significant other ‘acting suspicious’ or the family is told the death is ‘obviously’ suspicious and not a suicide. There is often not facts or evidence in support, and families will point to circumstances, and even rumors – they ‘heard’ about this or that, or the reactions of others were not appropriate, or they acted suspicious, etc. Unfortunately, it is very difficult to let the facts and evidence provide the answers. We have an obligation to prevent unfounded accusations and wrongful convictions before they happen, in the just the same obligation as we have to provide answers by the same facts and evidence to the families. We have worked with prosecutors and law enforcement on both open and closed cases. These have been at the request of families, and also to take the investigation out of the official capacity for an independent review and analysis. We report only what the facts and evidence answers – nothing else, and no matter what these are. As legal investigators, we most often work with plaintiff civil litigation and criminal defense. In doing so we have these perspectives – and the very same criteria, process, and obligations to our clients. We have accepted active official investigations for families; however, our experience has been varied - from still waiting months for responses to disclosure requests, to flat denial of requests. At no time has being involved representing the family during the official investigation been productive; and it has most often been unproductive.
One of the most damaging and recurring statements to families are those in which a certainty is given, when there is none. Specifically, a family is told “This is definitely a homicide, because…” or “This is definitely not a suicide, because…” and the ‘because’ people do not kill themselves in such manner – therefore, it has to be a homicide and cannot be a suicide. These statements from official investigations, private investigators and attorneys, and caring family - more than anything already questioned from the official investigation - will do more irreversible damage than can be undone. Not only do these leave more questions, they cause more pain and may lead to others being harmed in retaliation or wrongfully charged, and worse, convicted. It is best to learn and experience these investigative processes, or refer them to an expert. These are some of the very reasons we have developed related courses, certificate, and certification courses at www.InvestigativeCourses.com.
The purpose of this process is the same as the medical professionals Hippocratic Oath – to first do no harm. We are tasked with, “To the living we owe respect, but to the dead we owe only the truth. - Voltaire.” and from our friend and former Coroner in WY, now passed, Paul Zamora, “Be Their Voice”. These are our purpose and passion. We provide expert medicolegal consultation, review and analysis to provide our findings and opinion. This process is our motto, “Quaero Indicium - To Find The Evidence”. We further this by making appropriate recommendations. This may include further investigation, consideration of unreported or misreported evidence, and perhaps returning to the official investigation with our findings.
The loss of a loved one cannot be known or understood by others. The need for closure and answers, though known, also cannot be understood. The desire to bring comfort, closure and answers is known and understood. It is important to not let the emotions to bring comfort and closure overcome the importance of facts and evidence in bringing answers. Only those answers supported by facts and evidence can begin to bring comfort and closure.
The Defendant DIY Investigations
When Dean was a kid, there was a business near called U Auto Fix It – and it had all the tools and equipment needed for a person to work on their own vehicle. They also had mechanics on hand for customers not interested in DIY. It wasn’t long before Dean’s Dad handed their 1947 Willys Jeep to a mechanic – it was taking more time and money than expected, and ended up costing more for the mechanic to fix the mistakes.
Do It Yourself is too common of a mistake, like the Jeep, with the best of intentions. A person’s future is not a Jeep, fixing a leaky faucet or even arguing a traffic ticket. It is often said there are no guarantees in life. There is this one – mistakes in criminal defense will cost only the defendant, all others walk away unscathed.
Like you, we are contacted frequently by those with the best of intentions, which usually accompanied by insufficient financial resources. What should you tell them and why? We have accepted pro se cases, and offered pro bone assistance – both under careful consideration of the case and circumstances. With the exception of family questioned death reviews, which are not considered for litigation we predominantly work only with attorneys and their investigators. What are some of the issues? Here are some, and we go into more detail in the commentary. The life, liberty and future of a criminal defendant is the heart of the issue – and is not the circumstances to take chances with.
Doing It Yourself: Are you qualified and experienced? Are you prepared to be your own witness?
These are two basic questions. With the best of intentions, a defendant may seek the aid of someone they trust – or someone may volunteer to help. There is going to be bias – it cannot be avoided, it is why they are trusted. Being qualified is not specific to licensing – which, if required, can have all the work and evidence inadmissible. Being qualified is about knowing what criminal defense investigation is about – and there are several factors. First is what are the elements of the criminal charges, and how are they applicable to the investigation? Key words such as ‘intent’ or ‘knowingly’ seem insignificant to the unqualified and inexperienced. What is the legal strategy by the defense attorney? There are a limited number of defenses to strategize. One is an alternate suspect, another is the events did not happen as charged (which is different from did not happen at all). All of the investigative findings in the world which do not address the defense strategy is wasted. This is why experience is so important. A good professional investigator is always learning – from mistakes and simply their work, and learning from others, to attending specific training. Experience is also knowing the applicable law and rules of evidence as needed by the criminal defense investigator.
Is the trusted, and amateur, investigator ready to testify? Do they know what is to be expected? Have they ever testified? These are basic – and for some professional investigators, not answered – except all are ready to testify as needed. As will be pointed out here, there is no confidentiality to an investigator not acting as an agent for the attorney. In fact, there may be significant harm to have this person related or having a biased interest testify, especially under skilled cross examination by the prosecution.
Are they qualified and experienced? Are they prepared to be your witness?
This is something not often considered with DIY investigations. Testifying may happen at a deposition, a pre-trial hearing (bond, probably cause, and motions hearings) – and the prosecution or adverse party will be looking to impeach the information and credibility of the DIY investigator (which will be easy to do for the inexperienced). Testifying is an experience best observed to understand. Even for the experienced it can be uncomfortable and for those close to the defendant – also emotional. It is likely the DIY investigator is not qualified or experienced, and will be questioned to this. This will show when opinions are offered as answers, which will be objected to – only an court recognized expert can provide an opinion; all other witnesses – including any investigator – is a ‘fact witness’ and they can only testify to facts in evidence or having developed foundation through the testimony continuum to be admitted as evidence. This may also include their reports and any evidence they developed (i.e. scene photographs, interview recordings, etc.). This is a rabbit hole the DIY investigator will not be prepared for.
Does the person know the legal issues, elements of the charges, implications of the charges, confidentiality issues – including any disclosures, evidentiary issues?
These are complex areas experienced Criminal Defense Investigators learn through their relationships with attorneys, training, continuing education, from other colleagues, and experience. The most common mistakes made by DIY investigators (and inexperienced independent investigators) are breaching confidentiality, created reports and evidence (photographs and recordings) which are not protected by attorney-client and work-product doctrines and may be subpoenaed by the prosecution, trying to present their ‘evidence’ to the prosecution and/or law enforcement hoping to get charges dropped, and several other factors. It cannot be stressed enough – there are no protections between a DIY investigator and the defendant, or the DIY investigator and the attorney. Everything the DIY investigator does is vulnerable – exposed – to the prosecution and may be used against the defendant.
As an example – the DIY investigator sees on social media of the reporting victim they had planned an event to entrap the defendant, or they knowing made a false report of a crime by the defendant resulting in the charges. The DIY investigator goes to law enforcement and/or the prosecution with this information. Sounds good – case closed. Far from reality. This denies the attorney important information, the information is unprotected, and is now exposed to the prosecution – who is trying to convict the defendant with any information they have which may be used against them. This is very similar to the defendant waiving their Miranda rights with the hope the truth will set them free.
Similar to this are communications with the defendant, which are not confidential, and are exposed to the prosecution. If the defendant is incarcerated and writing or using a phone with the DIY investigator – their communication is being monitored, and may be used against both the DIY investigator and defendant. Too often jailhouse calls reveal conversations later used against the defendant; and, if the DIY investigator is to become a witness – against them.
Evidence is developed from discovery given by the prosecution to the defense, and through investigation. These are two very different tasks. For discovery, there are Constitutional rights of the defendant to receive these and the prosecution will share directly with the attorney, who will share with their Criminal Defense Investigator – neither will (or can) share with the DIY investigator. The DIY investigator will begin making public records requests – which will not include everything in discovery. They will then attempt to dissect the discovery, reach conclusions, and conduct additional investigation. These are where violations of confidentiality begin and the DIY investigator reveals to law enforcement and/or prosecution, and the defendant in monitored communications, everything they should not.
Common mistakes: Not communicating with the defense attorney; unprotected / non-confidential communication with the defendant. Disclosing findings to the prosecutor or law enforcement hoping to drop the charges. Making things worse – such as exposure to incriminating information and additional charges.
Of the issues described in this blog, this section may be the one that could cause the most damage and harm to the defendant’s case. Although all aspects we have presented are concerning, the disclosure of any defendant statements, defense evidence, and defense strategy can have consequences in which the defendant will be subject to.
Most often with no intent or malice – and actually with the best of intentions – a DIY investigator will divulge otherwise confidential information with the hopes of helping the defendant. Because there is no confidentiality between the DIY investigator, the defendant, and the defense attorney, they may also become a witness against the defendant. Most important – before this might happen – the DIY investigator has disclosed information unintentionally through recorded jailhouse calls, social media posts, and intentionally through direct communication with law enforcement and the prosecutor. As an example, the DIY investigator speaks to the defendant through a family jailhouse call – which is recorded – and conversations happen. The defense attorney and Criminal Defense Investigator are required to be given confidential means of communication by phone, mail, and in-person. From these DIY investigator disclosed communications may come amended charges, new charges – often more serious – and even prosecutorial decisions to not offer reduced charges or other plea negotiations. As a further example, in such a conversation the defendant admits to sexually taking advantage of another after the reporting victim is intoxicated (this is sexual assault / rape). The defendant further states they did not put any drugs in any drinks. These statements include an admission to elements of the sexual assault. There is other discussion, including they had a relationship a few years prior for a few months and were rekindling it. The DIY investigator goes to the prosecution with this to show there was no use of drugs or intent to rape, and there was implied consent due to a previous relationship being rekindled. These are not legal defenses or strategies – and are admissions to a level of sexual assault defined by applicable statute.
The next concern are the consequences caused by these actions. From amended and additional charges, to harsher sentencing. Any information presented to law enforcement goes to the prosecutor, and any information from the prosecutor can and will be used in their positions to offer, or not, plea agreements, hearings, trial, and sentencing. The only person who pays these consequences is the defendant. The best a DIY investigator can do is to completely avoid any involvement and communication of the charges, events, evidence, and other circumstances of the defendant – including any other criminal activities and history they may have. We have even seen family and friends find themselves charged as accessories or co-conspirators to crimes while in the process of trying to help the defendant.
Another Common Mistake – Retaining Your Own Professional Investigator
Another related issue is a Criminal Defense Investigator accepting a defendant, or the defendant’s representative (usually a spouse or parents) as a client – and not through the defendant’s attorney. There are several issues with this – this includes Rules of Professional Conduct the attorney must abide by, Rules of Evidence for all, as well as any work-product and attorney-client confidentiality protections. Under a licensing program, there may ethics and also the work-product and confidentiality protections; there may not be – and there isn’t if there is not a licensing or other consumer protection program, laws or regulations in place.
As an example, a defendant and/or representative is not happy with the attorney, specifically strategy. In addition to the conduct errors above, there is also the apparent collapse of communication between attorney and client, and there is no relationship between the attorney and independent investigator – and no confidentiality. This leaves both the attorney and independent investigator in a vacuum of information vs. lack of information, possibly conflicting information, and both procedural and ethical quandaries. There is also the question of any evidence the independent investigator may develop, and how will it be introduced. With this – what if the independent investigator testifying and no confidentiality or communication with the attorney.
As much as an investigator may wish to help a defendant and their representative – it poses significant issues to the defendant, which is the only focus and purpose of the attorney and any Criminal Defense Investigator. We are often contacted in these circumstances, and our best practices is to work only through the attorney – being retained, paid, and directed for tasks and strategy. Any concerns the defendant and/or their representative may have should be through the attorney.
In full disclosure, we have conducted investigations for persons close to us in both civil and criminal. These were done following all practices and standards through their attorney exactly as any other retained case would. Do we recommend doing so? Only if you can assure not being emotionally attached, and keeping only your professionalism. Even here, these should be limited and still only by professional investigators.
Advice – the defendant must follow the advice of their attorney and investigator, and their Constitutional rights. This includes the right to remain silent… to all people, not just law enforcement. A lose tongue is not a good thing.
Remember – mistakes in criminal defense will cost only the defendant, all others walk away unscathed.
PS – Criminal defense is not the only mistake of DIY. Doing your own background, individual locates, assets & liabilities, public records searches, etc. are just a few examples of where laws and regulations dictate what can be searched, reported, and used in decision making processes. Our agency does not do surveillance, deep social media investigations, financial investigations, etc. – we go to other professional investigators.
UNUSUAL DEATHS – OR ARE THEY?
Suspicious deaths – stabbed back of neck suicide; a woodchipper death; handgun found in a kitchen appliance. These have any investigator questioning what happened. Add false statements by people families trust – law enforcement, prosecutors, funeral homes, TV & movies – and you have suspicious families, and also criminal and civil litigation, even denied insurance benefits.
What is the best course of action when a client, family or other representative has any concerns in a death – from civil and criminal litigation, to family? First – do not agree or disagree, or provide any affirmative statements (i.e. this is definitely murder, homicide, suicide, accident, etc.). We too often hear, or read, in our consultations these statements. Then we see the details of why – no one shoots themselves in the heart, you can’t kill yourself in this manner, the funeral home said it can’t be, etc. We have seen law enforcement present evidence resulting in the change of a death certificate and resulting in criminal charges – and the death was suicide. We have seen a medical examiner’s office present evidence to law enforcement and charges dropped or case theories changed. We have seen the opposite of these. We have also seen the arguments the science of fingerprints, hair, blood spatter, etc. are not science because there have been errors – and which have resulted in wrongful convictions (and, not often publicized, no conviction where the evidence otherwise reveals beyond a reasonable doubt). We have seen circumstantial evidence used or ignored to persuade the interpretation of scientific evidence. In short, we have seen the verbal manipulation of facts.
Evidence – direct and circumstantial, scientific and otherwise – is based on theory, experimentation, and interpretation. Any misguided step in the process may result in error. An uninformed opinion, misapplied evidence, or relying on entertainment (CSI Effect) is concerning. We are contacted by other investigators, attorneys, and families. Investigators and attorneys have strategies to develop for their cases, usually litigation, which may be dependent on the findings in a death or serious bodily injury. However, if an investigator or attorney – or any other entity, including a funeral home, retired law enforcement or prosecutor, insurance adjuster, etc. tells the family what they want to hear or don’t want to hear – the statement is permanent in their minds and beliefs. This is why it is best to seek an expert and evidence based opinion. This may then include specific steps to take if the death is founded to be questioned. Every unexpected death may be suspicious – it is to be expected. At one meeting of another investigator we were asked how a city could have more suicides than homicides – the investigator was convinced of shenanigans at the medical examiner’s office and/or law enforcement investigations. No data or other reasons for the suspicion – it “just doesn’t feel right” and they were determined to prove their “theory”. Unfortunately, the investigator was often contacted by family members to investigator their loved one’s death – usually a suicide – and prove it was a homicide. These are disservices to the family, attorneys, etc. It may also result in a factual homicide being misinvestigated. Perhaps a wrongful conviction.
There are many cases of suspicious deaths which present potential conflicts in evidence. Recently, the Journal of Forensic Identification (International Association for Identification) presented a death by hanging, resulting in decapitation. After careful review of the evidence, including studies in possible methods of homicide, it was a suicide. There have been cases of suicide with the handgun later found in a kitchen appliance, or false statements by witnesses and family members to hide embarrassment. One well known case of a law enforcement officer, later found to have been embezzling money from a non-profit, planned the near perfect suicide as a homicide (and many more such staged events can be found). Colleagues have presented cases of one injury and two bullets in the wound tract, with one abutting the other end-to-end; or another of one bullet causing two distinct injuries. The first rule of thumb – there is no surprise in what a person will do to themselves or others. The other – know the science of the evidence presented.
Most deaths, significantly most, are natural – age, medical and health, etc. Next is accident – motor vehicle, workplace, an unintentional act, etc. Then there are homicides and suicides – and these are the most contested of deaths (and some have been found to be accident, and some accident have been found to be homicide or suicide). Those are the coroner or medical examiner determinations – or manners – of death. These are not the same as the legal – or criminal statute – determinations; and serious bodily injury is simply a non-fatal injury or series of events which could have resulted in death. A motor vehicle collision in which a person was carelessly or recklessly driving and resulted in the death of another may be certified as an accident and prosecuted as vehicular homicide. These are important distinctions, and in death investigation follow the same investigative and evidentiary protocols.
A grieving family or a wronged victim, and a criminally charged or civilly accused defendant, all deserve the facts as proper interpretation of the evidence finds. Every case should start with – “We don’t know the answer, but will determine as best we can.” – with no indication of suspicion or promised outcome. Once you tell a family or jury, “This is obviously a murder” there is no turning back, no matter what the evidence presents. It is an injustice and a disservice to clients, families, and victims in life and death to do otherwise.
As Voltaire said, “To the living we owe respect. To the dead we owe the truth.”; or, as our recently passed friend and Carbon County (WY) Coroner Paul Zamora said, “Be Their Voice”. For our agency, these are self-evident. But no death is.
Dean A. Beers, CLI, CFDI-Expert* and Karen S. Beers, BSW, CFDI-SME*
(*CCDIs, CFI-FTERs, CFSIs)
Associates in Forensic Investigations, LLC
A Rocky Mountain West Agency ~ National Consultations
(970) 480-7793 Office / TXT and (970) 480-7794 Fax
www.DeathExperts.com ~ associates@DeathCaseReview.com
Expert Legal Investigators and Medicolegal Consultants
Serious Bodily Injury & Death in Civil, Criminal, Probate and Interpleader Litigation
(agency images documenting blood stains on material in various magnification - suitable for independent expert review)
We are developing a new course for legal investigations - Evidence Inspection and Documentation – with release planned by our next newsletter in September. In a prior newsletter we mentioned DNA evidence collection services. These are not new from our agency, and should not be new to legal investigations. DNA collection has its challenges and preparations, and with the right training and supplies, can be valuable to clients and their cases. This includes knowledge and implementation of proper evidence collection, documentation, and secure storage – and by request, transfer to an accredited laboratory for analysis with known DNA standards. Similarly, opposing party evidence inspection is a valuable service to clients – and is as important as visiting and documenting the scene. Of course, there are limitations – usually budget constraints. This area can be of importance to preventing an ineffective counsel claim; and in post-conviction can address an ineffective counsel claim.
Whether as a fact finder or expert, your ability to properly and comprehensively document the adverse party’s evidence can be crucial to any criminal defense or civil personal injury case. The documentation of evidence and scenes – traffic intersection to building location of a crime, or collected evidence and the decedent – all are common. There are several reasons for doing so – from confirming their evidence, to comparing with reports, and possible event reconstruction. Doing so may answer important questions, and raise other questions.
How can you prepare and complete these assignments? What are the benefits to this process, as well as additional tools recommended? What about review and analysis of this evidence and the process?
Will you be collecting and documenting evidence? Most often not; however, knowing the process is important when reviewing the adverse party’s discovery and disclosures, and their processes. It is also important to know what is involved, so you may better advise your client.
First, be aware you will likely not be doing any collection or processing of evidence in the custody of another party (adverse parties, law enforcement, private party, etc.). Follow the directives of your attorney-client. If evidence is found at a scene – contact the attorney before proceeding. If you are working under a court order to collect evidence, such as DNA, be trained and prepared to do so and follow the directives of the attorney and court order with the cooperation of the agency having custody of the evidence (i.e. vehicles, instruments in a crime, etc.). If you are documenting evidence, such as impounded vehicles or evidence in custody, you are most often limited to photographs and videos with any visual inspection.
You will likely not be doing any collection or any examination which alters the evidence. If you review any discovery and disclosure from criminal and civil cases, you will be reviewing another’s evidence collection and documentation.
DNA Evidence Collection
DNA may be (not always should be) collected for a variety of reasons, and specific to a court order and attorney directives. Some examples of this may be:
• A law enforcement impounded vehicle involved in a criminal event and/or civil litigation.
• A vehicle involved in civil litigation and privately held by the owner.
• A surviving victim of a criminal event – such as assault.
• A decedent due to a criminal event.
• Clothing and personal effects from victims and suspects of a criminal event.
• Instruments used in a criminal event.
• Scenes from a criminal event, motor vehicle collision, etc.
Evidence Inspection and Documentation
As a legal investigator, and for experts, the inspection and documentation of physical evidence is important – it is, however, too uncommon. As a matter of being effective in any civil or criminal litigation, this is important. Too often there is a reliance on the official records, reports and photographs. There may be errors, undocumented evidence, needed perspective for photographs missing, etc. This is as important – perhaps more so – than going to the scene of the event. Why? Because the scene may not be available, or at least in the condition of the event; however, the physical evidence should be. We say ‘should be’ because there will be some changes for collection and examination purposes – another reason for inspection and documentation. As an example, looking at clothing of a victim or suspect will reveal defects from the event – stabbing, shooting, tearing, etc. – and also any emergency treatment, such as clothing being cut by paramedics. There will also be indications of examinations, such as marking where blood stains are and what stains are examined. These are all important to inspect and document, and later review and analyze with the official records, reports and photographs; as well as any findings of independent investigation and experts. One advantage to doing so after review of all the discovery and disclosure, and sorting facts and evidence, is knowing what to look for. This may include possible errors and omissions from the adverse processes, to areas important to litigation strategy.
Evidence may include scenes, vehicles, indoor and outdoor environments, roadways and intersections, clothing, weapons and other instruments, trace evidence – anything collected and stored in custody of the adverse party. By this time you should have reviewed the discovery and disclosure and know what to expect. If you have not, this has to be done first – it cannot be done after. In your review it was determined if there are any errors to look for – missing evidence seen in photographs and not logged, or just missed; areas of trace evidence; patterns and markings, etc.
• How can you prepare and complete these assignments?
• What are the benefits to this process, as well as additional tools recommended?
• What about review and analysis of this evidence and the process?
• This process is not just for adverse evidence…
This same process should be used for evidence for your client’s case. Most often this is for civil cases – such as vehicles, intersections, scenes of wrongful death, etc. Most often in criminal cases evidence is not collected; however, any similar considerations should be made in criminal defense cases.
In civil cases evidence may not be preserved indefinitely (i.e. totaled vehicles, or intersections subject to construction projects). Injuries to a person – including your client – will heal; or decedents buried and cremated – immediately documenting is important. As soon as possible these should be documented. For what there is no need now, there may be in the future – and once gone, its gone. The purpose may be to document damage and injuries, and preserve a scene as it was at the time of the event. Any case may take months to years, including any appeals. We have had civil cases go ten years, and civil cases are often the worst for evidence preservation. This is simply because a tort may not be reported for months to years, law enforcement may not have been involved or preserved items specific to civil litigation, and in civil cases evidence collection and storage is not common.
Look for our new course, covering this topic in greater detail – scheduled for release by the end of this month.
Visit www.InvestigativeCourses.com to sign up, and when released a special discount code will be provided.
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