Incident & Evidence Submittal For Court PresentationBy

Keith V. Farrell, MS

PSM Coordinator

Abstract

Whether an event was an accident or incident, the potential to have its ultimate conclusion in civil, state, or federal court is a realistic probability. All information and evidence gathered from the event scene is used to support the corporation investigator's testimony and to represent the corporation's position in legal proceedings. Thus, investigators are required to present their information and evidence in an acceptable manner for a court of law. This has the added benefit of a more complete risk analysis which will lead to a greater risk management. This paper will highlight the requirements of collection documentation and chain of custody procedures. Specific examples for court of law presentation of physical evidence, interviews, and photographs will be presented. Finally, the benefits of higher level of investigation that leads to enhancement of risk management will be presented.

Background

•Forensic Scientist Or Criminalist

•Certified Peace Officer

•Certified State Police Instructor

•Processed Over 3000 Forensic Criminal Cases

•Investigated About 100 Major Crime Scenes

•Testified 60 Times In State And Federal Court

Observations As A Criminalist

• Industry Is Doing A Good Job

– Investigation

– Root Cause Analysis

– Collecting Some of the Item of Interest

Observations As A Criminalist

• Industry Needs To Be Better At…

– Defining The Steps To Any Investigation

– Define An Evidence Officer To Maintain Chain

– Custody Control Of Photographs

– Custody Control Of Documents

– Documenting Of Incidents

– Asking Questions Of The Witnesses

Observations As A Criminalist

• Consider What Will Be The Ultimate Conclusion For Any Incident

– Company Files

– Court System

• Civil

• State

• Federal

Vocabulary

• Evidence

– Real – Relates To A Fact

– Circumstantial - Indirect, Implies A Fact

– Demonstrative - Replication Of Fact

– Documentary

– Work Notes Verse Final Report

– Photographs

– Testimonial

Admissibility

Chain Of Custody

• Documents that link all the items with all personnel who “touched” the items

• An item collected is in the same condition as collected.

• Testify in a professional manner to this information

Witness

• Clock Is Running

• Firefighting And EMT Personnel

Witness

Interviews Vs. Interrogation

– Interrogation, Person Is Detained Or Arrested And Cannot Leave

– Interview, Person Can Leave

– There Are Numerous Courses And Books On Subject

Interviews Suggestions

Capture The Spoken Statement – Tape Recorder

– Scribe

• Ask One Question At A Time

• One Questioner At A Time

• Ask For Any Clarifications To Items

• Complete Events In Chorological Order And Descriptions

• Make Sure That Your Question Has Been Answered

Interviews Suggestions, cont.

• Avoid Questions That Can Be Answered Yes Or No

• Avoid Leading Questions

• Rephrase Questions

• Ask Both Specific And General Questions

• Try Indirect Questions

• Be Thorough In Your Questioning

• Do Not Let Them Rewrite Their Statements

Witness Can Supply

• Sounds/Odors/Tastes

• Colors Of Smoke And Flame

• Placement Of Equipment Or Pieces

• How Anything Was Moved

• What Has Been Cleaned

• Document!

Investigation Steps

Incident Scene Investigator Checklist

1. Remain Calm, If You Are Calm It Will Help Others

2. Remember The Site As You Approach

3. Attend And/Or Transport The Injured From Area

4. Ensure The Process At A Safe Hold Point Or Safe Level

Investigation Steps, cont.

Do Not Enter The Area Until It Is Safe To Do So!

5. Secure Location (If Possible) By Roping Or Taping Off Location

6. Keep Rubber-Neckers And Media Away!

7. Secure The Witnesses To Nearby Location And Do Not Allow To Talk To Each Other

8. Establish The Location Of Investigation Command And Close To Scene

Investigation Steps, cont.

9. Perform The Initial Interviews With Incident Witnesses

10. Collect Initial Information, Weather, Process Conditions, Etc.

11. Request All Process Information, Work Orders, Permits, Lists, Etc.

12. Do An Initial Walk-through Of The Scene And Record The Basic Information

13. Interview Witnesses To Obtain Their Complete Description Of Incident

Investigation Steps, cont.

14. Finalize List Of Photographs Based On All Information

15. Take Photographs

16. Define Items To Be Analyzed

17. Collect Item of Interest (If Possible)

18. Create Photograph Log With Descriptions Of Items And Of Its Site

Investigation Steps, cont.

19. Gather Equipment And Information And Return Scene Control To Operations

20. Properly Store Photographs And Information

21. (Next Day If Not Sooner) Compile Information, Determine A Crude Timeline And Send Collected Items To Be Analyzed

22. Reports (Another Day)

(Much Later) Finalize The Timeline, Determine Root Causes And File Report

Investigation Steps, cont.

Remember:

The Final Use Of Your Information Maybe In A Court Of Law.

Treat All Information If It Is Going To Go To Court! (No Comments or Jokes)

Collection Of Evidence

• Documentations

• Statements

• Photographs

– With Labeled Markers

– Without Labeled Markers

– Mark On Drawings Where Photographs Taken

• Drawings

• Items Of Interest

Preservation Of Evidence

• Real

– Protection From Contamination

– Protection From Loss

• Packaging

– Sealing

– Identifying

– Initialing

• Documents

• Reports (Another Day)

Chain Of Custody With Examples

• Collection Log

– Item Collection Sheet

– Incident Worksheet

• Photo Log

– Photograph Log

– Photographer Incident Image Data Sheet

• Custody Log

– Custody Transfer Sheet

Collection Log

• Item Collection Sheet

Incident Worksheet

Photo Log

Photo Log

• Photographer Incident Image Data Sheet - Example

Custody Log

• Custody Transfer Sheet - Example

Evidence Locker

• Limited Personnel To Control Locker Access

• Limited Access

• Log Sheet For Any Movement Of Items

• Remember Storage Could Be For Years

• “Original” Photograph Images In Locker

• Personnel Can Testify To Locker Controls

Testimony

• Final Step

– All OR Nothing

– Prepare

• Concerns

– Predicate Questions

– Voir Dire

– Direct

– Cross

Predicate Questions

Business Case

• The Relationship Between A Quality Investigation And The Right Action Item

– Band Aid Solutions

– The “Right” Root Causes

• Protection of Business from Legal Actions

– Evidence Ready

– Personnel Trained

Business Case

• The Relationship Between A Quality Investigation And The Right Action Item

– Band Aid Solutions

– The “Right” Root Causes

• Protection of Business from Legal Actions

– Evidence Ready

– Personnel Trained

Thanks

• AICHE Spring 2010 Meeting

Chair: Richard Siegel

Co-Chair: Deborah Grubbe

• Invista

Questions