Fact Finding Investigations - Prepare
One of the most important and core tasks of investigators – from law enforcement to private, in civil and criminal litigation – is the witness interview. Witnesses can be victims or accusers, clients or defendants, those present at an event, and those not present who have information (hearsay). Generally, there are two sides to each witness – their own, and another’s; and the truth is the area between – which can lean more towards one person or another. It is the investigator’s duty – and skill – to assess the witness and fully inform their client (attorney, prosecutor, etc.) of the witness provided details. It is further important to empirically compare and contrast all details reported by witnesses, and also to other independent facts. Together these begin to tell the story, and determine the credibility of persons involved – including other investigators.

As noted in each of our books, the interview process is part of the fact gathering process – it is preceded by fact gathering, includes fact gathering, and is followed by more fact gathering. In Dean’s book, ‘Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases’ – (www.PracticalMethodsForLegalInvestigations.com) the process of legal investigation, including each interview, is Prepare, Inquire, Analyze, Document, and Report.

The first step, in the full investigation and in each component and task – each witness, scene, event and empirically. Acquiring information, facts and evidence is a step-by-step building process, and we begin with the Prepare step.

As the old story goes, in the example of circumstantial evidence, is waking up to snowfall and seeing rabbit tracks in the snow. The conclusion seems obvious, it snowed overnight and a rabbit crossed in the snow. Both are reasonable conclusions of circumstantial evidence. It can be assured it snowed overnight, as there is no other explanation for snow on the ground in the morning. However, can it be concluded a rabbit crossed in snow – is there another explanation? Had you seen the rabbit cross in the snow, it would be conclusive. The same can be said for a physical altercation.

Two persons are on a public roadway, one is ahead on a motorcycle and another is passing in a vehicle. In changing lanes, returning to the ‘slow’ lane, the vehicle cuts off the motorcycle – as later reported by the motorcycle driver. The vehicle driver reported he did not. There are no other reported witnesses. In the course of the investigation, you obtain an independent statement from the vehicle driver’s insurance – who there is now a claim against (‘adverse driver’), which has been denied. The statement includes the vehicle driver reporting there were three additional persons, on motorcycles, who stopped and he was threatened – and left the scene of the accident out of fear for his life.

Law enforcement received a report from the motorcycle driver, and did contact the vehicle driver from a license plate reported. The motorcycle driver stated he was alone and did not threaten the vehicle driver. Law enforcement, several days after the event and having no other information, writes a citation to the vehicle driver for careless driving, but not for leaving the scene – the motorcycle driver is not cited. Your client is the attorney for the claimant, the motorcycle driver, and your task is to determine the facts which establish liability. Your task is NOT to only establish liability against the vehicle driver.

To ‘Prepare’ for your interview of the vehicle driver, you first obtain the Traffic Accident Report and statements, and also both the 911 calls and the dispatch log (i.e. Computer Aided Dispatch – CAD; or Calls For Service, etc.). From these you learn the following:
- The dispatch log shows the vehicle driver was the first caller from the scene.
- There were two other identified callers, also from the scene and the log includes information from each they witnessed an vehicle driving erratically in traffic and cut off a motorcycle. Neither stopped.
- The 911 call from the vehicle driver includes their statements of driving on the road, being surrounded by 3 or 4 loud motorcycles, and then being able to pass them. After he did, they sped up and surrounded him again, slowed down, and forced him to stop. After that, they were trying to open his car door and he was able to drive off, pulling into a gas station to call 911.
- The 911 call from the first witness states they saw a vehicle, described and matching the vehicle driver’s, pass them and then a car in front of them, and then a motorcycle. It looked like the vehicle pulled over fast because of another vehicle coming at them, cutting off the motorcycle.
- The 911 call from the second witness states they were behind a motorcycle, when a vehicle – which they could not describe, other than dark, passed them and the motorcycle, then cut off the motorcycle as another car passed from the opposite direction.
- There was no 911 call from the motorcycle driver.

Briefly, back to the 911 call of the vehicle driver and an important fact intentionally left out of the above information. During the 911 call, you hear the vehicle driver’s voice in a panic and you also hear loud banging and a male yelling he is going to pull him out of the car and beat him to death.

Also, back to the dispatch report and another piece of information – many now include GPS coordinates of the cell phone tower transmitting the call. Using any popular mapping software, you find the vehicle driver’s call came from closer to the reported scene of the traffic event, and not a gas station several miles away.
From your pre-interview preparation, you have learned the following:
- There were at least two unreported witnesses as 911 callers;
- Both reported the vehicle driver as driving in an unsafe manner;
- One reported seeing the vehicle driver cut off the motorcycle;
- Both reported seeing only one motorcycle;
- Neither reported seeing the vehicle or motorcycle stop;
- The first 911 call GPS, from the vehicle driver, was at a point several miles from where he reported calling from; and
- The first 911 call included background of a single person outside the vehicle making threats to the vehicle driver.

In many similar cases, there are now dashcams and personal cameras available at popular electronics stores. These are available to everyone, and can be mounted on bicycles, motorcycles, helmets, vehicles, etc. Cell phones are also used for photographs and videos. It is important to determine if any of these devices were used by any reporting persons, witnesses and law enforcement.

As investigators, our purpose is to find and report information, facts and evidence to our client. As legal investigators, this is to our attorney-client; as law enforcement this is to the prosecutor; and as insurance adjusters this is to the insurance company. Knowing we are investigating after-the-fact, it is important to keep in mind others also investigating may not have had all the information at the time of their investigation, and who they represent – insured, accuser, defendant, etc. – may have a cognitive bias, and perhaps only information supporting their claim is reported. Remember, our task is NOT to only establish liability against the opposing party.

Establishing a fact pattern is important to assuring your client is fully informed and can make appropriate decisions and legal strategy in the best interests of their client. This may include dropping any claims or charges, amending any claims or charges, or accepting a settlement or plea offer. The time to learn of what should have been investigated is NOT during any hearing, proceeding or trial – it is before.

Every investigation has its limitations – from time to resources to funding. The process of investigation, and the depth as well as direction, are dictated by these factors, as well as the directions of the client. As a legal investigator, we are tasked with finding all information, facts and evidence to present to our client, for them to make a full and informed decision in the best interests and protection of the rights of their client.

Autopsy Options in Civil and Criminal Litigation
 
We are often contacted for advice on having an autopsy performed, finding a forensic pathologist, or having our agency and/or forensic pathologist conduct a review of records, reports and photographs in a criminal or civil case for pre- and active litigation. Many find it interesting the options available to them – or not available. The first question to ask is – is the body available for autopsy; and the second is – was an autopsy performed? The only thing that prevents an autopsy is cremation. An autopsy can be performed on an embalmed body, including exhumed weeks to years - even decades - later.  Embalming does present issues; however, these are addressed by the forensic pathologist.
 
What are the available options for an autopsy? First, autopsy is from the Greek, ‘autopsia’ – “to see with one’s own eyes”. We recommend having a board certified forensic pathologist conduct any autopsy in potential litigation. Other specialties involve the hospital and medical setting – which involves clinical and anatomical pathology. A forensic pathologist, often cross trained and certified in both clinical and anatomical pathology, has the added education and training in areas of injury and injury causation to determine the cause and manner of death; such as our consulting forensic pathologist. In addition, we recommend a member of the National Association of Medical Examiners (www.theNAME.org). Areas of additional medical education and specialized training for the forensic pathologist includes toxicology, firearms and ballistics, blood analysis, and trace evidence, including DNA, collection.
 
The forensic autopsy includes a review of the medical history, crime scene evidence, evidence of injury or disease, and medical and trace evidence. A forensic pathologist is available to all parties – prosecution, plaintiff, and defense. In addition, a forensic pathologist is available for clinical consultation – examination of living persons – very important and valuable to surviving victims of serious bodily injury. The primary distinction between a fatal and non-fatal event can be fractions of an inch. We treat all SBI cases the same as death cases. Finally, we also recommend an expert medicolegal death investigator be present to document any autopsy requested.
 
An autopsy, to see with our own eyes, is available in the following manners:
- Private autopsy – if an autopsy has not been completed or the case is not in the jurisdiction of the medical examiner / coroner;
- Second full autopsy – if an autopsy, forensic or medical only, has been completed and an independent full forensic autopsy is needed. This includes exhumations;
- Forensic Pathology Review – if an autopsy has been completed, however, the body is not available for a second autopsy (cremated, not exhumed, logistically not available); and
- Forensic Body Documentation – whether previously autopsied or not, and the body is available, the body can be documented by photographs, video, diagramming, and any additional evidence collection.
 
There exists standards and protocols for when to conduct forensic autopsies, the process of both the forensic autopsy and the death investigation, as well as accepted usual practices for each. As part of our consultation in death cases, we review the processes of the official investigation.
 
Private Autopsy
If an autopsy has not been completed or the case is not in the jurisdiction of the medical examiner / coroner, the next-of-kin can request a private autopsy. As most deaths are not subject to autopsy, the family may have questions to be answered by autopsy. It is recommended that any unexpected death be autopsied; however, from budgets to forensic pathologist availability, most are not. As an example, we often see fatal motor vehicle collisions or law enforcement determined suicides not autopsied, as it is believed the cause and manner of death are known by investigation. We have written extensively on the errors of these ways.
 
A private autopsy is authorized and paid for by the next-of-kin, and conducted by an independent forensic pathologist. Consulting with a forensic pathologist in advance will assist in determining if a forensic autopsy is possible and potentially informative, or if another available option is better.
 
The private autopsy is conducted in the same manner as the medical examiner / coroner authorized autopsy. This includes gross external examination, and internal examination of the body, toxicology, and microscopic tissue examinations. The forensic pathologist will also request the decedent’s medical history, and circumstances of their death. We also recommend an expert medicolegal death investigator assist with the autopsy and investigative processes, much as a medical examiner / coroner system has available.
 
Second Full Autopsy
If an autopsy has been completed or the case is not in the jurisdiction of the medical examiner / coroner or private autopsy – and may include exhumation, the next-of-kin can request a private autopsy. A second autopsy is most common when there is a claim or dispute in the findings of the original autopsy. In media, we see this in potentially high-profile cases – such as law enforcement involved deaths. We may also see these where it is believe the first autopsy missed something, or did not conduct a specific test or examination, or where new evidence has been found and a second autopsy is necessary.
 
A second autopsy is also conducted as a Private Autopsy (above) and is also limited to the body being available, which would include embalmed and exhumed bodies. Being embalmed presents some issues, but does not hinder a second autopsy or findings. As with the original autopsy, the forensic pathologist will also request the decedent’s medical history, and circumstances of their death. In addition, they will dissect their own tissue for microscopic examination, and specimens for toxicology; they will also likely re-examine and test specimens from the original autopsy in microscopy and toxicology. In addition, we also recommend an expert medicolegal death investigator assist with the autopsy and investigative processes.
 
Forensic Pathology Review
If an autopsy has been completed, however, the body is not available for a second autopsy (cremated, not exhumed, logistically not available, or a forensic pathologist is unavailable) or there was no autopsy, there are alternatives, the first of which is an independent review by a forensic pathologist. This review would include the original autopsy report, toxicology results, medical history and circumstances of death as known at the time of the original autopsy.
 
Based on the findings of the review, or in consideration of the circumstances in litigation, the forensic pathologist may recommend also doing an independent examination of any retained specimens for microscopy and toxicology. This review, and additional independent examination, are as close to a second autopsy as can be done, without having the body to examine. Of course, any autopsy without a body is subject to the limitations of not being able to examine first-hand, as well as retain their own specimens. We also recommend an expert medicolegal death investigator assist with the review of the official investigative records, reports, and photographs with the forensic pathologist.
 
Forensic Body Documentation
As with the Forensic Pathology Review (above), the body can be documented by photographs, video, diagramming, and any additional evidence collection. A forensic pathologist may provide this service, or it is most often provided by an expert medicolegal death investigator. Due to the nature of the evidence, documentation, examination, and potential testimony, we recommend this be done with expert experience considered. There are specific steps and protocols to follow, as well as potential evidence to look for in the examination and documentation.
 
What Steps to Follow
Each of these available options – from autopsy to review – can be conducted at a morgue or funeral home setting, dependent on what is logistically available.  To further the findings of an unexpected death involved in litigation, time is of the essence and immediate action must be taken, to include:
- Obtain notarized consent from the next-of-kin or court order;
- Provide an immediate letter of preservation, or court order, to the medical examiner / coroner’s office and/or funeral home or other custodian of the body;
- Provide an immediate letter of preservation, or court order, to the medical examiner / coroner’s office, funeral home, hospital or other custodian of the tissue (histology) and toxicology specimens; and
- Make immediate arrangements with a board certified forensic pathologist and/or expert medicolegal death investigator.
 
Our goal is to provide you with the utmost in privacy, confidentiality and our professional attention to your legal investigation and expert consultation needs.​ ​You can learn about us at www.DeathCaseReview.com/Attorneys.html for details, CVs, and information packets.
 
​If we can be of assistance in any death or personal injury consultation or investigation, please contact our office at your convenience and visit www.DeathCaseReview.com/sample-cases.html for cases we have worked.  We welcome your inquiries and the opportunity to assist you.
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A synopsis of our expert consultations is best described as: ​​
​​"Expert [Forensic / Medicolegal / Death] Investigator to review the records, reports, photographs and evidentiary documentation in order to provide a non-medical forensic expert opinion, within the scope of their education, training and experience, as to the totality of the circumstances of the fatal and non-fatal event and the competence of the official investigation, with respect to death investigation protocol and standards."
 
In addition, we have an affiliated consulting Forensic Pathologist and a Forensic Toxicologist available for additional, and medical specific, expert consultations – including all protocols and options presented here.
 
We invite you to contact us at your convenience for the opportunity, and to introduce you to the Associates in Forensic Investigations experience.

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Dean A. Beers, CLI, CCDI, CFI-FTER and Karen S. Beers, BSW, CCDI, CFI-FTER
Colorado Licensed Private Investigators (PI2.050 and PI2.019)
Cheyenne WY Licensed Private Investigators & Security (31146)
Board Certified Legal Investigator / Expert Consultant
Board Certified Criminal Defense Investigators
Board Certified Forensic Interviewer-Forensic Testimonial Evidence Recovery
Certified in Medicolegal Death Investigations / former Deputy Coroners

Associates in Forensic Investigations, LLC
A Rocky Mountain West Agency
Expert Consultants and Legal Investigators
Personal Injury, Negligence & Death in Civil, Criminal and Probate Litigation

www.DeathCaseReview.com ~ beersda@DeathCaseReview.com
CO - (970) 480-7793 Office / TXT and (970) 480-7794 Fax
WY - (307) 222-0136 Office / TXT and (307) 222-0138 Fax
'Quaero Indicium' - To Find The Evidence