Who Owns the Evidence?

Recently, we conducted the examination of a 2013 Kia Soul, the purpose of which was to determine the cause of a fire. The vehicle had developed a problem with the antilock braking system and was taken to a local shop for repair. While on the shop’s lot and after an overnight, the vehicle was destroyed by fire the following day. During the examination of the vehicle, it was later confirmed that the fire had occurred on the repair shop’s property. It was also confirmed that the vehicle was owned by a third party. As a result, since the vehicle was evidence in the investigation, and since the vehicle was owned by the third party, the right of evidence ownership belonged to the third party. The implication being that any disassembly, or more importantly, any destruction of the evidence could be regarded as an act of “spoliation”. Spoliation of evidence refers to evidence that has been violated to the extent that one party to a lawsuit cannot use the evidence to prove its case. The party that causes the spoliation can usually be held liable by means of litigation. In these types of cases where the owner of the evidence is not the investigating expert’s client, care must be taken not to handle, remove, or otherwise examine something that can be altered by handling, broken, or replaced in its original position or state. It is advisable to photograph and document the condition of evidence and then conduct a joint examination with all interested parties at a later time.

“Leave the Friggin Thing Alone!”

It still amazes me that whenever a fire occurs in a machine, like a car or a tractor, somebody who is NOT authorized, has to mess with it. There are still people out there that don’t realize that when they disassemble something they are tampering with evidence.  Even if the case has nothing to do with anything criminal, there is the possibility that a product defect or faulty workmanship might have been responsible for the fire.  But, if the machine (evidence) is disassembled, then evidence is compromised if not destroyed outright.  Disassembly and subsequent testing or examination cannot occur without all interested parties being placed on notice.  Once notified, all parties must be given the chance to participate in formulating a protocol for the disassembly, testing and examination.  After the protocol is formulated, the parties must agree on when and who will perform all necessary functions.  In short, all parties must have access to the same information at the same time.  If not, the potential for spoliation of evidence claims can become an avenue for additional lawsuits or defense, depending on your point of view.  Note that many property insurance policies have a subrogation clause which requires that the policyholder do everything it can to protect their carrier’s right which includes protecting evidence.