Officers must properly package and maintain evidence. Photo Mark Ide
You can’t overemphasize the importance of maintaining evidence in the evidence room.File photo
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Every day lawsuits are won and lost based on the quality of the evidence presented at trial. Most law enforcement officers are well trained in the collection and preservation of evidence in the criminal arena. However, many of these same officers never consider the ever-increasing likelihood a civil suit could be filed against them or their agency, and too often lose, destroy, sell or fail to collect evidence crucial to civil police litigation. With the very real potential for plaintiffs to win federal civil-rights cases and receive large awards, law enforcement agencies must implement procedures to safeguard themselves and their officers in civil litigation.
Initial collection of physical evidence occurs at the scene of an incident. Good record keeping during collection starts your department out on the right foot. First, secure the crime scene. For a major event, tape off the area and keep a written log of who enters and exits the scene. Create a simple form that records the date, time and name of all individuals who come and go. Designate individuals to maintain this list, and preserve a copy with the crime report and with the evidence in the evidence room. Similarly, photograph all relevant evidence in its original location and take close-up photos if appropriate. Make sure to take numerous overview orientation photos of the entire area. This may not seem crucial at the time, but orienting a jury to a location, especially a large outdoor setting, can help your department explain how things looked and where things happened at the time of the event.
In addition, detailed photographs of the surrounding area prove crucial because often a trial in a civil suit will not take place until two to five years after the occurrence. Sometimes these trials transpire much later if the plaintiff was incarcerated, thereby suspending the statute of limitations on a civil-rights claim. By that time, the area may have changed dramatically. For example, buildings may have been erected in what was an empty field, bushes grew or were removed, or carpet and furnishings were replaced. Thus, sight lines and visibility are altered from the original crime scene. Most importantly, memories fade, and even the most experienced officer may no longer remember how things looked or where he was situated in relation to the plaintiff, physical objects and structures at the time of the incident.
Imagine an attorney asking you in the spotlight of the courtroom where the fence was in relation to the plaintiff and other officers during an incident that occurred five years earlier and for which you had no premonition you would be sued. A good photograph takes the guesswork out of this potential pitfall and proves useful to the civil defense attorney in preparing the officers for trial, questioning witnesses and even cross-examining the plaintiff. The photographs will also include much information not described in the written crime report information that may prove unimportant in the criminal case, but which may portend the outcome in the civil case.
Your method for booking evidence is crucial to its collection. How, for example, should you handle photographs? First, create an evidence log of the number of rolls of film. This log must designate a number, letter or other code uniquely identifying each roll from any other roll of film. Second, note the number of exposures on each roll (e.g., 12, 24, 36). Finally, after the film is processed, record the actual number of exposures made, and place the photographs and negatives in an appropriate envelope or other container.
Why go to these lengths to catalogue photographs? Years later, people may not remember how many photographs were actually exposed from any one roll. For example, assume a plaintiff injured Officer Jones. Those injuries must be documented. It's the middle of the night, and the person taking the pictures is not the regular evidence technician. They snap three photos of the injuries, and then run off to do something else, later turning in the film. The evidence log in that case will likely read: "Photos of Officer Jones' injuries. One roll 400 ASA Kodak 24 exposures." Four years later during production of documents, the department produces that roll of prints and seven other rolls from that night to the plaintiff. Later still, a department witness is on the stand at trial and the plaintiff's attorney asks, "These three pictures are the only photographs of Officer Jones' injuries, correct?" The witness affirms that fact. "This is the evidence log showing what film was used, how many pictures are on the roll and the subject matter, correct?" The witness again says, "Yes." Then the plaintiff's attorney asks, "Who destroyed the other 21 pictures?" The scrambling begins, no one can immediately locate the negatives and the department looks as if it's hiding something. A simple notation of the number of exposures made on an evidence log created when the film comes back from processing avoids this problem altogether.
Another pitfall: allowing evidence-room clerks or technicians too much discretion. Everything collected holds potential importance. Assume the plaintiff struck Officer Jones in the lower back with a dirty piece of wood. First, immediately following the incident, photograph Jones in full uniform, including a close-up of the back of his shirt. Collect and photograph the piece of wood. Book the shirt into evidence and store it until after the time has run out for filing civil litigation or until trial.
Why is maintaining the shirt so crucial? Assume in the time after the incident, Officer Jones wants his shirt back. Uniforms are expensive, and he doesn't want to buy another shirt. He asks the evidence clerk for his shirt. The evidence clerk, or the officer in charge, decides the shirt is not really important and hands it back. Jones then routinely wears and dry-cleans the shirt. Meanwhile, a civil suit arises, and the officers on scene say they had to shoot the plaintiff because he was about to cause great bodily harm or death to Officer Jones. At trial, the plaintiff's attorney questions whether the officer was really struck. The pictures make it look like he was hit, but they are not conclusive. Imagine if the defense attorney can lift the shirt from a properly sealed and maintained evidence bag and show it to the jury complete with the dirty mark across the back. On the other hand, imagine the officer displaying the shirt he's worn and cleaned for a few years and trying to explain the piece of wood caused the abrasions in the fabric at the back. You decide which shirt provides the better evidence. It may not have seemed important initially, but the shirt turned into crucial evidence for the credibility of both the officer and his department.
It's a well-known fact that evidence rooms get overcrowded and space is at a premium. Still, you can't overemphasize the importance of maintaining evidence. Another example: Many departments maintain a policy of selling firearms after a certain period of time. Like the shirt example, it's equally important to keep all guns until the statute of limitations has expired or until the conclusion of the civil trial. If you have any doubt, you can check with your city attorney, county counsel, attorney general or other attorney designated to give your department advice. Public entity attorneys can give important behind-the-scenes guidance and even training to their law-enforcement clients.
Presentation of evidence to a jury conveys more than the actual object displayed. The manner in which you bring evidence to the court, handle it in the courtroom and present it to the jury tells a story about your agency. The jury in a police civil-rights case spends hours, days and weeks looking around the courtroom. They notice details that might escape the attention of the average officer or trial attorney.
If the evidence comes to court in a battered cardboard box from a national athletic-wear chain, the jury draws one sort of conclusion. If, instead, the evidence arrives and sits in the courtroom in a clean, neatly labeled banker's box, they reach quite another conclusion. The jury pays attention when the judge calls one of the trial attorneys or law enforcement witnesses to retrieve an item from the evidence box for testimony. If you use an assortment of recycled materials to keep the evidence, the jury may conclude your department is sloppy and doesn't care about the case's outcome.
For example: Imagine a civil-rights case involves the shooting death of the plaintiffs' adult child. The clothes the decedent wore at the time of the incident will be displayed in the courtroom. One of the decedent's weeping parents is on the stand. It's a tense, somber moment. All eyes follow the attorney, who walks across the courtroom to retrieve the bag of clothes. She reaches into a tattered cardboard evidence box and pulls out a recycled bag from a toy store to bring back to the witness. What does this say about the police department's respect for the decedent? What conclusions will the jury draw about the department?
Use plain, brown paper or plastic bags sealed with a label recording the agency, date, item number, case number and other relevant information. These professional containers remove from the equation any possible negative inference a jury may draw about the quality of a department based on how it maintains its evidence. Is the way you maintain evidence relevant to the jury's decision? Technically, no; practically, yes. Should jurors consider such things as how the evidence is stored? No. Do the jury's observations in the courtroom affect their opinion, even subconsciously? Absolutely.
Every law enforcement agency must maintain clear and concise policies related to the collection, maintenance and destruction of evidence. Most civil-rights litigation revolves around use-of-force issues, and often agencies direct their attention to updating those types of policies. But for the best defense against civil claims, you should update all policies, even those seemingly unimportant evidence policies.
Today's courtroom comes equipped with modern audiovisual equipment. It's a simple task for the plaintiff's attorney to put the chief of police, sheriff or other policy-maker on the witness stand and, with the flick of a wrist, display their evidence-room policy with the court's video equipment. The courtroom dims and the policy appears in gigantic dimensions on the wall. Then, after some initial questioning about how the department likes to stay current, the attorney zooms in to the bottom corner of the document indicating the date of the policy's last revision. Imagine the year 1982 displayed three feet high on the wall. Again, it's all about perception. You can implement annual policy updates easily and inexpensively.
In many civil cases, disputes arise regarding the maintenance, collection or disposal of evidence, and the evidence-room technician is called to interpret or explain what happened. Agencies often regard this position as unskilled and staff it with an hourly employee or even with a citizen volunteer. The technician receives little, if any, training in how to testify in court. When the big day comes, and it will, the technician feels nervous and overwhelmed. Even pre-trial preparation by the trial attorney proves insufficient.
You can implement basic training of evidence personnel after hiring, and conduct periodic on-the-job sessions to keep staff members confident in their skills. This training will result in a more-aware technician who understands the implications of evidence at a trial, is comfortable testifying about it and thereby reassures the jury regarding the quality of evidence your department has collected.
Law enforcement agencies must take steps to better preserve and present evidence in civil litigation. Most precautions carry little upfront cost. And, substantial savings result when all the evidence gets collected, preserved and presented to the jury in the courtroom, seemingly without effort.
Digital Photos, Too
The advent of digital photography has not lessened the importance of maintaining a proper chain of custody and accounting of photos taken. Make sure you carefully follow a specified departmental procedure for the use of digital photographs. Failing to do so will lessen the credibility of your evidence and may render the photos inadmissible.
For more on this topic, check out "Digital Patrol, Part 2," January/February 2006, p. 50. ed.
Kimberly Colwell has practiced law for 19 years, devoting the last 17 years to public-entity defense. She chairs the tort/civil rights litigation practice group at Meyers Nave, a California law firm specializing in the representation of public entities. She has handled hundreds of police cases, from the most basic traffic stop to federal civil-rights death actions. She also handles cases involving dangerous conditions and most aspects of tort and contract litigation. She conducts training, general orders review and systems analysis of police and public works departments as well as seminars and training sessions on how to avoid claims and how to investigate and follow up from the inception of a claim through final disposition of the matter. Contact her at firstname.lastname@example.org.