Incidents – big or small all

require the same carte

2017 CLM Chapter Event
Engineering Systems Inc
5697 N. 13th St
October 26th, 2017

Nebraska 1

Chapter
Presenters:
Hans C. Iwand, PE
ESi

Emily Motto
Baylor, Evnen

Chuck Fox, PhD.

ESi

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Introduction
• Review of Standards
• Literature Review of Evidence and Influence
on Litigation
• Evidence Collection Methods
• Case Histories

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What Brings Us Here?
Our work can make
us skeptical;
however, careful
evidence collection
will provide the
information to
ensure a realistic
outcome.

New Yorker Magazine

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Standards do exist…
• ASTM E860-97, Examining and Preparing Items That Are or
May Become Involved in Criminal or Civil Litigation

• ASTM E1188-11 (Reapproved 2017), Standard Practice for

Collection and Preservation of Information and Physical
Items by a Technical Investigator

• NFPA 921, Guide for Fire and Explosion Investigations

• ASTM E2765-11, Use of Image Capture and Storage

Technology in forensic Document Examination

• ASTM E1459, Physical Evidence Labeling and Related

Documentation
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ASTM E 860- Examining and Preparing Items
That Are or May Become Involved in Criminal or
Civil Litigation
• Significance and Use
This practice establishes procedures to be followed
to document the nature, state, or condition of items
of evidence.
It also describes specific actions that are required if
planned testing, examination, disassembly, or other
actions are likely to alter the nature, state, or
condition of the evidence so as to preclude or
adversely limit additional examination or testing.

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ASTM E1199 - Collection and Preservation of
Information and Physical Items by a Technical
Investigator

This practice is intended for use by any technical

investigator when investigating an incident that can
be reasonably expected to be the subject of
litigation. The intent is to obtain sufficient
information and physical items to discover evidence
associated with the incident and to preserve it for
analysis.
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ASTM-E1459-Physical Evidence Labeling
and Related Documentation

• By following the procedures specified in this guide,

any item of physical evidence will have a traceable
audit trail by which the origin, past history,
treatment, and analysis of the item can be
determined.

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E1492-Receiving, Documenting, Storing, and
Retrieving Evidence in a Forensic Science
Laboratory

• Prior to being presented in court, a foundation

must be established showing how evidence was
collected, who collected the evidence, where it was
collected, who has had custody of the evidence,
how the evidence has been processed, and when
changes of custody have occurred.

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ASTM-E2765 Use of Image Capture and Storage
Technology in Forensic Document Examination

The procedures outlined here are grounded in the

generally accepted body of knowledge and
experience in the field of forensic document
examination, forensic photography, and forensic
digital imaging. By following these procedures a
forensic document examiner can use image capture
technology reliably in support of examinations. This
support can include:
4.1.1 Documentation of the item(s) submitted for
examination, its condition upon receipt, and its
condition at various points during the examination
process
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NFPA 921-Guide for Fire and Explosion Investigations

The decision on what physical evidence to collect at

the incident scene for submission to a laboratory or other testing
facility for examination and testing, or for support of a fact
or opinion, rests with the fire investigator. This decision may be
based on a variety of considerations, such as the scope of the
investigation, legal requirements, or prohibition. (See
Section 14.2.) Additional evidence may also be collected by
others, including other investigators, insurance company representatives,
manufacturer's representatives, owners, and occupants.
The investigator should also be aware of standards and
procedures relating to evidentiary issues and those issues related
to spoliation of evidence.
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Where to start…

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The aforementioned standards are noted throughout
the literature…
What is the best use of the first $5000 you spend once you
have decided to initiate an incident investigation?
A. Hire the worlds greatest lawyer?
B. Hire the worlds greatest expert?
C. Properly preserve the evidence?

Ans: C.

“Data! data! data! He cried impatiently. I can’t make bricks without clay.”
“There is nothing like first-hand evidence.”
“It is a capital mistake to theorize before one has data. Insensibly one begins to
twist facts to suit theories, instead of theories to suit facts”
-all Sir Arthur Conan Doyle
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Literature Review…

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Evidence
•Lexicon
•Case Studies
•Federal Rules
•Examples
•Key Considerations
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Evidence: Lexicon
Substantive Evidence: The gun used as a weapon
or the smoking gun e-mail

Demonstrative Evidence: An exhibit to be

entered into evidence

Demonstrative Aids: Used to explain matters but

not submitted to the jury for deliberation

Settlement Tools: Visual Aids used to clearly

illustrate your opinions on an event.
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Demonstrative Evidence
Engelgau Patent (Teleflex) Asano Patent (Prior Art)

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 Demonstrative Evidence

3D Model of
Asano Fig. 5
Asano Fig. 5

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Demonstrative Evidence

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Demonstrative Evidence

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Demonstrative Aids

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Mediation Tools

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Admissibility: Rules
• FRE 401 – Must be relevant (have a tendency to
make existence of a fact of consequence more or
less probable).
• FRE 403 – Probative value substantially outweighed
by danger of unfair prejudice.

BUT – “Rule 403 was never intended to exclude the likes of Clarence
Darrow simply because he was effective and persuasive in the
courtroom. Therefore, just because a CGE helps a jury absorb,
understand and believe attorney argument or witness testimony
does not mean that Rule 403 has been violated.”

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Admissibility: Rules
• FRE 611 – Mode and Order of Interrogation and Presentation.
• The court exercises control over evidence, including use of
“demonstrative evidence.”
• FRE 901 – Authentication.
• Prepare to offer testimony of a qualified expert that the computer and
software function properly and are generally acceptable in the field.
• FRCP 26(a)(2)(b) – Duty to Disclose.
• Requires disclosure of “any exhibits that will be used to summarize or
support” opinions.
• FRE 702 and 703 – Experts.
• Must be based on sufficient facts or data, be the product of reliable
science, and must assist the trier of fact.
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Admissibility: Examples
D. DE Trial Management Order:
Trial Procedures
****
Demonstrative Exhibits. Unless otherwise agreed to
by the parties, demonstrative exhibits are marked for
identification but not admitted into evidence. Unless
otherwise ordered by the Court, demonstrative
exhibits may be used only if they have been made
available to opposing counsel no later than 24 hours
before their proposed use.
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Admissibility: Examples
• Federal Judicial Center – Judge’s Guide to Pretrial and Trial /
Effective Use of Courtroom Technology :
• “A good animation … often has a presence in a courtroom akin to
a separate witness. Even if the cross-examiner does a good job in
discrediting the expert witness who sponsored the exhibit, the
animation itself may “testify” well – that is, it may make sense to
jurors and be given significant weight regardless of the status of
its foundation.”
• “Disclosure shortly before trial is tantamount to no disclosure at
all.”
• “Disclosure of the completed animation should be made at least
90 days before trial....”
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Admissibility: Considerations
• Timing – Select your sponsor and involve your graphics
vendor early.
• Admissibility – Driven by the reliability of the methodology.
Is the software accepted? Can the expert justify the
assumptions?
• Tools – 3D animation, PowerPoint, analogies, recreation.
• Environment – Know the court and the courtroom.
• Prepare a Backup – Murphy’s Law
• Disclosure – Disclose early or stipulate to the timing of
disclosure or motions in limine.

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Scene/Artifact Capture

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Demonstrative Evidence & Aids
1 2

3 4

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Demonstrative Evidence & Aids

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Demonstrative Evidence & Aids

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Demonstrative Evidence & Aids

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Demonstrative Evidence & Aids

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Demonstrative Evidence & Aids

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Conclusions:
By incorporating standardized information collection
methods during all scene you will achieve the following:
• Ability to meet admissibility requirements for
• Trial
• Mediation
• Have the necessary information and data to assemble very
persuasive arguments for:
• Substantive evidence
• Demonstrative evidence
• Demonstrative aids
• Settlement tools
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Q&A
Hans Iwand, PE
ESi

Emily Motto
Baylor, Evnen

Chuck Fox, PhD

ESi
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