Preserve The Evidence
One of your first steps in any litigation or criminal matter is to ensure that the tangible and intangible evidence is preserved. I strongly recommend that immediate legal action be taken ordering the opposing party to maintain and preserve all evidence until your experts have completed their independent assessment.
This is especially important when firearms and firearms evidence might be returned to the owner. In police shootings, the officer's firearm, all ammunition and magazines must be safeguarded and not returned to the officer. The officer should be issued another firearm.
Also any victim's clothing, radio transmissions, photos, crime scene diagrams & logs, reports, etc.
Prevent Surreptitious or Furtive Tests
My policy is to work thoroughly and correctly the first time; I have never had need to re-test or re-examine once reports and opinions are published.
This is not true with many other experts or crime labs and they often resort to conducting clandestine additional tests. Often, they find my report has exposed significant weaknesses in their case which results in covert testing to rehabilitate their flawed initial work.
This is a strong indication that their original opinions might not survive a Daubert Challenge, otherwise what is the purpose of conducting tests that should have been done before their report was issued and should have been its foundation?
To prevent this, you must file action with the court which requires that they obtain court permission to re-examine evidence or perform more tests.
The court should require advance notification outlining the reason why tests should be allowed, and if it is to support findings already made, then you should oppose unless there is new evidence to be examined.
If more tests are allowed, they should be witnessed by your expert or a member of your team and be permitted the opportunity to conduct the same tests if additional opinions result from their work.
Objectivity Affected by Lab Policies
It is not well known that many labs have policies which prohibit firearms examiners from reporting opinions which might be exculpatory. The basic 3 results of toolmark comparison are 1) a match 2) elimination 3) inconclusive.
A "match" requires verification by a second examiner or supporting diagrams and photographs.
An "elimination" is where the examiner determines that the differences in toolmarks between items of evidence are such that they could not have come from the same source.
"Inconclusive" is where the examiner can neither match nor eliminate.
Some crime labs have policies which prevent examiners from issuing and opinion of "elimination". This means objectivity is compromised with the resulting opinion being issued as "inconclusive".
Opinions of "inconclusive" should be investigated to ascertain if the lab has a policy of prohibiting "elimination" reports.
Make Sure Your Expert Is An Expert
Salespersons in a gun store are expert gun salesman; gunsmiths are experts at repairing guns; neither is an expert in firearms and ballistics unless they possess some significant other training, education, and experience.
In a hunting non-fatal shooting case I worked on, the opposing party retained a person who presented himself as a ballistics and hunting expert. He belonged to half a dozen hunting clubs and had 30 years hunting experience.
He had never investigated a single shooting incident from a forensic view, had no knowledge of ballistics, presented technical data that conflicted with factory published ammunition performance, and reported that the shooter did not violate any firearms or hunting safety protocols despite the fact that the shooter fired 3 shots while swinging on a running deer, using 000 Buck, shooting toward a roadway and hit another hunter with the pellet penetrating into his lungs, even though the Game Warden's investigation found the hunter negligent and was fined.
Do your homework.
