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Investigative Facts – AFI-LLC – Aug 2023 3 of 8

August Commentary: Investigative Facts

Investigations are not about a single fact, a single source, a single report, or a
single photograph. One may be important, however, it is the empirical information
of multiple facts, sources, reports, and photographs – clusters – which are the
investigations.

Whether a personal injury, accident, homicide or suicide – the myths may
overshadow the facts. Our judicial system is based on multiple empirical facts –
direct and circumstantial. These facts are the map to the truth, are as close as can
be determined. Is a single frame from a video, or a single statement from a report
a fact? Yes. Are they conclusive? Possibly, and usually not. Perspective, not pun
intended, is another way to look at this concept. If you have a single photograph
or video frame the perception may be a person reaching for a weapon. As the perspective changes from one angle to
another, so does the perception – and the person was buttoning their shirt. This is true of witnesses – and is, in part,
why they see and hear different things from the same event – perspective and perception.

When interviewing witnesses in a personal injury case, such as a motor vehicle collision, it is important to know their
position and how they may have been influenced by their surroundings. For example, a passenger is a vehicle making
observations will be different from the driver – they have different reasons for their observations. A pedestrian on one
corner will have different observations from another witness at the opposite corner, of even standing right next to
them. Never ignore a potential witness, particularly citing they would see or hear the same. We often hear this from
other witnesses, such as a driver listed on a traffic accident report disclosing an unlisted passenger and telling us they
saw the same thing. The fact is, they don’t – they see and hear different things. These may be exculpatory or inculpatory
to your client.

The same holds true for a criminal defense case – facts, multiple facts. These facts will tell a story, and the accuracy of
the story is only with the accuracy of the presentation and interpretation of the facts. Here let’s talk about physical
evidence – which applies to all types of litigation and is most often seen in criminal litigation. Physical evidence is said to
speak for itself, however, it doesn’t speak to the whole story. In fact, circumstantial evidence – a collection of indirect
evidence – may do so and in a better way. Physical evidence can be direct or circumstantial, and a combination of them.

For example, as the story goes, a hunter in a cabin wakes up and sees rabbit tracks in the snow. This is pretty simple and
demonstrates physical evidence being direct evidence – a rabbit had been there. Is this the whole story? No, there is
more to the story if the right observations and questions asked. First, how many sets of tracks – any coming to the cabin
or only from the cabin? Next, how was the hunter certain they were rabbit tracks? When the hunter go to bed and when
did it start snowing – had it been before or during his sleep? Through simple questions, you learn a rabbit crossed in
front of his cabin after it started snowing, which was after he went to bed. In a criminal defense case a timeline is
important – and is usually a collection of circumstantial evidence – empirical facts – together with direct evidence.

In a homicide case the victim is found in the front yard, face down, with multiple gunshots to his back. The assailant ran
and the event was not visually witnessed, only heard by various neighbors hearing multiple gunshots. Some state there
were two shots, a pause, then one more; others state they heard them all rapid fire and didn’t count or had different
counts. From this scene investigation it is concluded the victim, who resided at the home, was walking to enter his house
and was surprised from behind, shot multiple times in a robbery attempt. Because his wallet, some cash and some drugs
were still on him, it is further concluded the assailant was interrupted – probably by neighbors – before taking these
from the victim. No firearm was recovered; three casings are recovered. A suspect is identified, arrested, and charged. A
preliminary hearing held and various law enforcement detectives testify to the above. This includes a neighborhood
canvass found no eyewitnesses, and no evidence of a robbery. The defendant was identified as someone who had
departed a bus at stop just one block from the house and was seen on the camera walking towards the house just
minutes before the shots were heard. When asked about the gunshot wounds and trajectories, no detectives could
answer these – only what they observed on scene, which were three gunshot wounds to the back, with one being

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