Chapter 06

© 2009 Delmar, Cengage Learning

Spoliation

Chapter 6


Objectives

• Describe and understand spoliation issues• Describe how spoliation issues are affected by

first responders as well as the assigned investigator

• Describe and understand the remedies courts have ascribed to those who have created spoliation issues


Case Study

• On one particular Saturday evening, Engine 15 responded to a reported kitchen fire

• The fire scene clearly indicated that the fire had started on top of the stove

• The babysitter insisted she had turned it off• A firefighter turned the knob posts to make sure

the range was off– Because evidence was altered, could not determine

cause


Introduction

• Everyone must be aware of spoliation issues– Should establish a written agency policy

• Failure to maintain and protect evidence can result in:– Court-ordered fines– Sanctions– Dismissal of the court case

• Intentional or negligent acts that result in spoliation could result in criminal charges


What Is Spoliation?

• Loss, destruction, or material alteration of an object or document that is evidence or potential evidence

• Almost any item within and around the structure could potentially become evidence – The placement or position of that object is just as

important as the object itself


What Is Spoliation? (cont’d.)

• Spoliation can have a dramatic impact on everyone associated – Destruction of evidence can affect the ability of

investigators to determine accurately the area or origin and cause

• Spoliation of evidence could also lead to key evidence not being able to be submitted in a court of law



Figure 6-1 A circuitbreaker interior asseen after drillingout the pins holdingthe two pieces ofthe plastic housing.If done with duecare and accordingto spoliationrecommendationsit can providevaluable evidence.



Figure 6-2 Thesimple act ofturning a knob onan appliance candestroy the knob’suse as potentialevidence, as suchcreating spoliation.


What Spoliation Is Not

• Suppression personnel in the normal course of their duty are not committing spoliation – During the overhaul stage, suppression personnel

must be cognizant of spoliation

• Debris must be disturbed by the public investigator to locate the area of origin– Must be well documented– Video must be used in conjunction with photos


What Spoliation Is Not (cont’d.)

• Sometimes it is necessary to remove debris and room contents and then bring them back into the scene for reconstruction

• Investigator should maintain photos and documentation that support alternate hypotheses

• Private sector follows different procedures – If private fire investigators identify potential evidence

that may require destructive testing, they must notify all known interested parties


What Spoliation Is Not (cont’d.)

Figure 6-3 The act of shoveling off the scene while searching forevidence in itself does not constitute spoliation.


Discovery Sanctions and Penalties

• Repercussions of not following accepted procedures with evidence can be varied and far-reaching

• All parties have an opportunity to have access to evidence that will be used by all sides– This is called discovery and is one of the foundations

of a fair trial


Discovery Sanctions and Penalties (cont’d.)

• Discovery sanctions are punishment for failing to follow discovery rules– Can be quite harsh in the form of monetary fines – Not only can this be costly financially, but it also

jeopardizes the individual’s credibility – When expert testimony is disallowed, the perpetrator

of the crime may go free– If destruction of the evidence be intentional or

negligent, tort actions can be taken• Criminal charges could also be levied


Designing Training Programs

• Training program is essential to ensure that the agency prevents spoliation incidents

• Too many variables make it impossible for one program to fit each and every department


Proper Investigative Attitude

• Ensure the investigator has a proper attitude – Investigator must believe in the constitution and court

system• Everyone entitled to fair trial

– Must remember that they are seekers of truth and not case makers

– Must be prepared to have a second expert come onto the scene and make a different determination


Training Program Design Committee

• Design committee must ensure that all aspects of necessary training are included

• At a minimum, the committee should consist of: – Representative from the local prosecuting attorney’s

office – Member of the department’s training division – Representative from the local fire and arson

investigating team

• Consideration should also be made of including someone from the private sector


Creation of Agency Policies

• Should outline when the investigation is to take place and what requirements are necessary

• Should address when the investigation can be conducted

• Should also address how evidence is to be handled


Creation of Agency Policies

• Private sector– Policy definition is not complete unless it addresses

how other entities such as insurance companies will address spoliation

• Public investigator must understand the difference • Caution: public investigator must avoid any

indication of collusion between the private and public sector


Summary

• Understanding federal and state laws is essential to knowing your rights and the rights of others

• Through case law, fire investigators have been given direction as to what is acceptable in spoliation issues


Summary

• It is best to seek recommendations from the prosecuting attorney on the topic of spoliation – Will assist you to establish rules, guidelines, approved

forms, and policies to avoid spoliation

Chapter 06

Business

cause spoliation of

spoliation incidents

spoliation recommendations

spoliation chapter

spoliation public investigator

potential evidence

destruction of evidence

aware of spoliation