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The Investigative File: Public Agency

by Guy E. Burnette, Jr., Esquire

While there may be several witnesses for the prosecution who need an investigative file, the lead investigator must have a complete investigative file to bring to court. A properly prepared and organized file should contain most of the following items.

Contents


CV/Resume - Assuming the lead investigator will testify as an expert witness, a copy of the investigator's CV (Curriculum Vitae) or resume should be in the investigative file. This will be required during the qualification process to establish the investigator as an expert witness. It may be needed during cross-examination when the investigator's background, experience and training are challenged - even if the investigator is not testifying as an expert.

Origin and Cause Report - The fire investigation reports should be in the investigative file for reference during testimony. While they will probably not be offered in evidence, the investigator may need to occasionally refer to the report during direct and cross-examination about the fire's origin and cause. Ideally, the investigator will be fully prepared and completely familiar with the facts of the investigation so that it will not be necessary to refer to the investigative report.

Lab Report - The original lab report and related evidence will be in the witness file of the chemist or laboratory analyst who testifies at trial. A copy should be in the investigative file for reference by the lead investigator, as the lab analysis may be used to validate the origin and cause determination when an accelerant is found or to discredit the origin and cause determination when it is not.

Fire Scene Photos - All photos of the fire scene and any other significant photos should be in the investigative file. They should be put in the proper order and accurately labeled. All of the key photographs will have been enlarged for use as demonstrative evidence to be shown to the jury. The original photos in the investigative file should be marked with the same exhibit numbers for ready reference when questioned about one of the enlarged photos. The investigative file should contain all of the photos taken in the case, even the ones which are not enlarged.

Fire Scene Video - If the fire scene was videotaped during the fire or afterward during the investigation, it should be in the investigative file. It will likely be used as an exhibit at trial and should be pre-marked and labeled as such. If only portions of the videotape will be shown to the jury, an edited copy should be made for that purpose while maintaining the original in the investigative file.

Diagrams - Any important diagrams of the fire scene or other areas related to the case should be enlarged for use as demonstrative evidence. Every original diagram or a reduced copy should be in the investigative file. The investigator may need to refer to it during cross-examination about the fire scene in case the investigator is not allowed to leave the witness stand to use the enlarged diagram or to confirm the authenticity and accuracy of the enlarged diagram. The original or a reduced copy may need to be admitted in evidence in place of the enlarged diagram.

Blueprints / Building Plans - Blueprints and building plans should be in the investigative file whenever they are available. They will likely be used as evidence at trial. It may be appropriate to enlarge the blueprints or building plans for use as demonstrative evidence. If the original blueprints or plans are going to be used as evidence they should be pre-marked and labeled as trial exhibits. Because of the nature of blueprints and plans, it may be helpful to have them mounted on a cardboard or fiberboard backing. In that event, the investigative file should contain a copy of the blueprints or plans.

Timeline / Flow Chart - A good example of effective demonstrative evidence is a timeline or flow chart of the key events or witnesses in the case. A timeline is helpful in preparing for trial testimony as it lays out the chronology of events in a visual form. Just as it is helpful to the investigator, it will be helpful to the jury. A flow chart or link analysis of the witnesses or "players" in the case may be similarly useful evidence. To be effective as demonstrative evidence, the timeline or flow chart should be enlarged for use at trial. In that event, a reduced copy should be kept in the investigative file for reference during testimony and for admission as a trial exhibit in place of the enlarged copy.

Consent To Search/Warrant - Where the fire scene was investigated under the authority of a consent, administrative warrant or search warrant it should be in the investigative file. It may or may not be needed as an exhibit at trial, but should be available to the investigator during trial testimony. Although most search and seizure issues are resolved prior to trial, the issue may be raised during trial or a new issue may arise about the legality of the fire scene search.

Waiver of Rights Form - Where a statement has been taken from the accused, a waiver of rights form may have been executed. It should be kept in the investigative file for any number of possible uses at trial, including proof of the legality of the statement obtained or for establishing the date and time of the statement.

Evidence Log - An evidence log should be maintained whenever physical evidence is collected and preserved prior to trial. In order to prove the proper chain of custody the evidence log may become a trial exhibit. While the evidence custodian may need the original log to prove chain of custody, the investigator should have a copy in the file to establish his part in the chain of custody or respond to any issues about evidence handling.

Defendant's Statement - If a written, recorded or videotaped statement of the defendant was taken, it needs to be in the investigative file. Presumably, a transcript of the statement was prepared and it should be in the file. A written statement may be admissible evidence and should be pre-marked and labeled as a trial exhibit.

Tape / Videotape of Defendant's Statement - When the statement of the defendant was on tape or was videotaped, the original tape or videotape should be in the investigative file. It will likely be admitted in evidence and should be marked as a trial exhibit. If it needs to be edited, an edited copy should be made and the original should be preserved in the investigative file.

Witness Statements - Any written or transcribed statements of witnesses in the case should be in the investigative file. The investigator will need to have the statements available to refer to during testimony and the statement itself may be admissible evidence under certain circumstances. In that event, the statement should be marked as a trial exhibit.

Witness Tapes / Videotapes - When the statements of any witnesses have been recorded on tape or videotape, they should be in the investigative file. In most cases, they will not be admissible as evidence. However, the investigator may be questioned about the information developed from the witness and it needs to be available in the file.

Witness Summaries - Summaries of all witness statements should be in the investigative file for any of several reasons. A witness can change his testimony during trial and the summary will allow the investigator to quickly identify any discrepancies or conflicts in the new testimony. The investigator may be challenged about the information obtained from witnesses which was used to develop the case. The summaries make this information readily available to the investigator should an issue suddenly arise during trial.

Examination Under Oath - In an arson-for-profit case, the Examination Under Oath transcript may contain critical evidence for the case. An authenticated original transcript should be in the investigative file, pre-marked and labeled as a trial exhibit.

Examination Under Oath Exhibits - Any records or exhibits to the Examination Under Oath should be part of the investigative file and will likely be used as evidence at trial. They should be original exhibits which have been properly authenticated, pre-marked and labeled as trial exhibits.

Examination Under Oath Summary - A summary of the Examination Under Oath transcript should be in the investigative file for ready reference during the testimony of the investigator. The statements of the defendant are generally admissible as an exception to the hearsay rule. The investigator will need to have a summary available to be able to quickly be able to refer to specific portions of the statement during his testimony.

Fire Department Reports - All of the fire incident reports should be in the investigative file, including the "run report" or response report. The investigator may need to refer to this information in testifying about the fire itself. The response time, fire conditions and other factors may be used in establishing the origin and cause of the fire.

Police Reports - The police reports should be in the investigative file to confirm the time frame and the conditions of the fire, as well as other relevant information which may be in the police reports.

Insurance Claim Documents - In an arson-for-profit case, this will be essential evidence at trial. The original documents should be obtained from the insurance company and marked as trial exhibits. A certified copy of the insurance policy should be in the file, as well as the Proof of Loss and claim documents submitted by the defendant.

Insurance Fire Report - When an independent investigation of the fire's origin and cause has been conducted by the insurance company, a copy of the report should be in the investigative file. It may be an issue for cross-examination which the investigator will need to be able to respond to readily.

Insurance Company Lab Reports - The lab reports from the insurance company investigation should be in the file. Because the lab reports are based upon different samples collected from different areas of the fire scene, the results may differ from the lab reports analyzing the prosecution's evidence. It is likely to become an issue during cross-examination.

Insurance Company Photos/Diagrams - While these will probably not be used as evidence in the prosecution, they may become an issue during cross-examination. They should have been reviewed prior to trial and need to be available in the investigative file during trial. They should all be accurately labeled to avoid confusion or conflicts in describing what they show.

Miscellaneous Insurance Records - The particular facts of the case may necessitate various insurance records as part of the investigative file. An insurance application, premium payment records, loss notice, claim payment records and other such items may be appropriate in a particular case. All such records should be compiled in separate folders in the investigative file. Those items which may be used as evidence need to be pre-marked and labeled as trial exhibits.

Property Records - Depending upon the facts of the case, certain property records may need to be in the investigative file and available as trial evidence. This may include the sales contract, deed, mortgage, property tax assessment/payment history, sales listings or any other such records. A separate folder for each item should be prepared and put in the investigative file. Anything which will be offered in evidence should be pre-marked and labeled as a trial exhibit.

Utilities Records - The electric, water, gas, sewer and related records may be relevant to the case. They should be part of the investigative file in separate folders if they will be used in the case. Any records which will be offered in evidence should be pre-marked and labeled as trial exhibits.

Telephone Records - Telephone records, particularly cellular telephone records, are often important evidence in the case. They should be part of the investigative file and any records which will be offered in evidence should be pre-marked and labeled as trial exhibits.

Delivery/Newspaper/Mail Records - When there is an issue about the occupancy of the property or the identity of the occupants, these records may be important evidence. When they will be offered in evidence, they should be pre-marked and labeled as trial exhibits. They may require proper authentication to be admissible at trial.

Reprinted with permission from the author.

 
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