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.