The Investigative File: Public
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.
- 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
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.
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
Reprinted with permission from the author.