How to Handle Evidence as a Private Investigator

• April 29, 2019
• by Stephanie Irvine
• Articles

For many private investigators, the culmination of the work that they do ends in a courtroom — that is, provided the evidence they collect is handled appropriately and admissible in court. Whether the evidence gathered by a private investigator is for a family law case, insurance fraud, or even to assist in a cold case, there are certain steps that must be taken to ensure that all of the effort isn’t for naught. No matter what type of evidence you’re collecting, doing so within the parameters of the law and with appropriate and complete documentation is a necessity.

Obtaining & Handling Physical Evidence

It is critical that physical evidence be handled in such a way so as not to contaminate or compromise the integrity of the evidence. This means before even touching a piece of physical evidence, it must be documented to include where the evidence was found, the date and time that it was found, the general conditions of which it was found including the temperature, wind, weather, amount of light, etc., and how it was procured.

Complete and thorough documentation is absolutely necessary because without it, the evidence could be deemed contaminated or cause the defense to question its authenticity. Documentation is a theme you will find within this article for any type of evidence because documentation is key to preserving the evidence, proving its existence, and ensuring it will hold in court.

If you find physical evidence, make sure that it is well documented before you attempt to obtain it, not simply after you have found it. As a basic example, if you find a shoeprint, first take a photo of it and include a ruler so that the dimensions won’t be skewed by perspective. Additionally, you will want to document where it was taken, the date and time, as well as all of the conditions surrounding it (temperature, weather, traffic, etc.) before attempting to retrieve the evidence from the scene.

Once you have adequately documented physical evidence, then you can collect it, but it is imperative that the collection is done with great care. For example, if you found a bullet casing, you will want to first document it, then collect it without touching it so as not to transfer your DNA to the object, and then store it in an appropriate container where it cannot be damaged. As an example, you could use a pen to collect a shell casing or wear rubber gloves. By taking those extra measures, you will ensure that the evidence is able to be further processed by a lab (if applicable) for additional evidence, such as fingerprints or DNA, and then entered into evidence. When collecting any type of evidence, you must take caution to preserve the evidence as much as possible and prevent the transfer of any DNA, fingerprints, or other contaminants from compromising the evidence.

Obtaining & Handling Digital A/V Evidence

Since we are now in the digital age, digital video and audio equipment is typically part of a private investigator’s toolkit. This type of technology allows for the evidence to be easily obtained, stored, and sent to clients.

When it comes to using digital video surveillance, having a clear picture is critical. If you go through the trouble of surveilling and storing the digital evidence but the picture quality obscures the subject, it ultimately won’t be helpful in the case. Ensure that your equipment will produce image quality that is not obstructed or blurry by testing it regularly. Similarly, test your audio equipment to ensure that the audio comes across clear and unmuffled. This is an important aspect in obtaining digital evidence.

When it comes to handling digital evidence, documenting and logging evidence obtained, as well as safely securing digital evidence, are paramount. Amanda Clement of Clement Investigations explains, “Documentation in any evidence gathering is key. Keeping backups of pictures, videos, and audio files in different places is also significant in case anything were to happen to the main source of where the original file is (a desktop computer for instance). I backup my data to a secure online storage site that has two-factor authentication, and I encrypt my backups on my personal PC and they get locked in a drawer in my office.”

Ensure that you have a log of all of the evidence taken complete with dates, times, location, length of recording, subject, and even brief written summaries of what is contained in the recording. Furthermore, keeping this information secure so that it cannot be tampered with or compromised is also imperative. Having everything documented will not only aid in merely keeping things organized, but it may be essential for the attorneys litigating the case.

Obtaining & Handling Other Types of Digital Evidence

For many private investigators, surveilling a subject and his or her actions is part of the job. As technology has developed, there are many tools that can aid in an investigation from GPS, to drones, and even surveillance over the web. However, these newer types of digital aids may be problematic — and even illegal — depending on the state. It is imperative that you conduct your own due diligence as a private investigator to ensure the legality of using these aids in your state before engaging in potentially illegal activity.

GPS trackers have long been a part of investigations featured in pop-culture, and for good reason, as they have historically proven to be beneficial in surveilling a subject. However, keep in mind that while it is perfectly legal for private investigators to use this technology in some states, there are other states actively pursuing legislation or have passed legislation that prohibits the use of GPS trackers. Doing so illegally may result in criminal charges, some even felonious, even though you may have an active private investigator’s license.

Similarly, drone photography and video may be helpful, but be aware of the laws within your state as well as FAA regulations regarding drone photography. If it is legal in your state, you’ll want to follow the same guidelines to obtaining and storing digital audio/visual evidence. Find Law offers a state-by-state list that indicates the legality of drone usage, but we implore you to double check this before engaging in that activity.

With regard to obtaining digital evidence on a subject’s computer, be aware. Across the United States, there are laws that prohibit installing spyware on a subject’s computer, even if your client volunteers to install it themselves. While there may be some opportunities to collect this type of evidence, it must be done by technological professionals and within the law.

Collecting Witness Statements

Eyewitness statements can end up being major components in a case and can contribute to a prosecutor being able to file charges. When evaluated as an independent statement, witness accounts may not hold much weight in court as some, unless they were party to an event, are considered circumstantial evidence. However, when combined with other direct or physical evidence, these statements can create a compelling case. Eyewitness statements are often used to drive an investigation forward and to allow for the collection of more critical pieces of evidence at a later date.

Statements must be collected within the legal confines of the law, meaning that an investigator cannot threaten, intimidate, or coerce a potential witness and he or she must also abide by the consent laws within that state. For example, Illinois is a dual-consent state which means that both parties must be aware of and agree to be recorded. Justia offers a list showing the state-by-state consent laws, but please note at time of publication this list was last updated in January 2018.

Private investigator Amanda Clement explained, “In Iowa, we are allowed to record our conversations as long as we partake in the conversation, so I record my interviews. A copy of that interview is given to the attorney as well as a report summary of what was discussed and the more vital pieces of information gathered from that witness.”

Knowing the statement collection and recording laws in your state are crucial to handling the information appropriately. Providing all of the eyewitness information to attorneys and/or local authorities with jurisdiction is also important to ensure viability in a court proceeding.

Understanding Evidentiary Rules in Your State

Whether you are collecting physical evidence, interviewing witnesses, or obtaining digital evidence, it is imperative the evidence obtained is done so lawfully, in a manner that is easily accessible, and with proper documentation. Hopefully, you are able to work in tandem with a legal team that can advise you properly what needs to be obtained and any regulations regarding doing so. Because laws vary from state to state, and because laws can change as new legislation is introduced, it is imperative to stay on top of the rules for collecting evidence in your state. But that shouldn’t be hard for PIs to dig up — that’s what you do, after all.