Working PIby Dean A. Beers, CLI, CCDI, CFDI-Expert and Karen S. Beers, BSW, CCDI, CFDI-SME
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 cumulative information of multiple facts, sources, reports, and photographs—clusters—which make the investigation.
Whether a personal injury, accident, homicide or suicide, the myths may overshadow the facts. Our judicial system is based on multiple empirical facts—both direct and circumstantial. These facts are the map to the truth, and 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, but usually not. Perspective, no 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 of the person who 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 their surroundings may have influenced them. For example, a passenger in a vehicle making observations will be different from the driver. A pedestrian on one corner will have different observations from another witness at the opposite corner, even if they’re standing right next to them. Never ignore a potential witness because you think they saw or heard the same thing. We often hear this from other witnesses, such as a driver on a traffic accident report disclosing an unlisted passenger and telling us they saw the same thing. The fact is, they didn’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 depends on 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. Circumstantial evidence, a collection of indirect evidence, may tell a better story. Physical evidence can be direct or circumstantial, and even 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 are asked.
First, how many sets of tracks? Are any coming to the cabin or only from the cabin? Next, how was the hunter certain they were rabbit tracks? When did the hunter go to bed? 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 and after he went to bed. In a criminal defense case, a timeline is important and is usually a collection of circumstantial evidence and 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 witnessed visually, only audibly by various neighbors citing multiple gunshots. Some stated there were two shots, a pause, then one more; others stated they heard them all rapid fire but didn’t count the shots; some had different counts altogether. From this crime scene investigation, it is concluded the victim, who resided at home, was walking to enter his house and was surprised from behind and shot multiple times in a robbery attempt. However, the victim’s wallet, some cash, and drugs were still on the body, indicating the assailant was interrupted—probably by neighbors, before taking what he could from the victim.
No firearm was recovered, but three casings were. A suspect was identified, arrested, and charged. A preliminary hearing was held and various law enforcement detectives testified to the above. Furthermore, a neighborhood canvass found no eyewitnesses and no other evidence of a robbery. The defendant was identified as someone who had departed a bus stop just one block from the crime scene 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 directly, only what they observed on the scene, which was three gunshot wounds to the back, with one being ‘execution-style’. The defendant was charged with first-degree murder, as well as other charges (felon in possession of a firearm, aggravated robbery, etc.).
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Then, the independent investigation happens. In reviewing the law enforcement and medical examiner records, reports, and photographs provided by the prosecution in discovery, several key facts are learned:
• The defendant and victim did know each other.
• The autopsy report showed the trajectory of two bullets from front to back—both to the chest, with one exiting (perforating) without being recovered, and one recovered (penetrating); and one bullet was back to front and also exited, and was recovered from the ground by law enforcement after the investigator found it.
• From this, the sequence of events was at least two shots from the front first, followed by one shot from the back after the victim had fallen to the ground.
• Further trajectory analysis, with consideration of various possible movements of the shooter and victim, would be completed and show the shooter directly in front of the victim and then standing approximately at the shooter’s feet when he was on the ground.
These facts not only dispute but completely disprove the official narrative of multiple gunshots from behind the victim, surprising him. The facts themselves do not tell anything more—they do not tell who the shooter was or the motive.
An additional independent investigation was conducted, including a neighborhood canvass developing two different witnesses who also only heard the gunshots, two doorbell cameras recording the defendant in the direction from the bus stop to the victim’s house, and re-interviewing reported witnesses.
Additional witness statements included information the victim may have been dealing drugs from his house and had no set schedule. One reported seeing the defendant at the home recently. Before trial, it was asserted the shooting was in self-defense. The defendant stated he went to the victim’s house to buy drugs and the victim became angry when he didn’t have all the money owed. The victim pulled a gun from his back and they wrestled for it. The defendant got the black semi-automatic gun, and when the victim came at him, he shot twice, then started to run—only pointing the gun at the victim on the ground and shooting again out of fear of being chased. He then threw the gun in a dumpster in an alley across the street.
The facts in this scenario did not change; how they were investigated and interpreted were. Additional facts were presented from a further independent investigation that presented both perception and perspective, disproving the prosecution’s theory and developing the defense theory. From this, the charges may be dropped or amended, a plea offered, or a trial to follow. How and if each of these plays out should be based solely on the facts, not only perspective and perception—empirically supporting each other.
About the Authors
Dean and Karen Beers. Dean Beers founded Associates in Forensic Investigation in October of 1987, and Karen Beers joined the agency in 1996. Since 2008 they have specialized in Expert Consultations and Legal Investigations nationwide in Personal Injury, Negligence & Death in Civil, Criminal and Probate litigation. Together they developed the Certified Forensic Death Investigator (CFDI) Program exclusively for Criminal Defense Investigators, have developed additional training courses, and authored articles and books in these areas.
