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Notice To Preserve Evidence: EFFECTIVE Evidence Gathering

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First, I should preface this post. This blog post is in the legal category of my blog, but I am NOT an attorney. Always follow the discretion of your attorney over what I say and/or write. Your attorney will understand things about your case that nobody else will, like the nuances of your case, the general attitudes that key people in your case have, and such. So, always listen to your attorney in your case, over anyone else.

Now, on to the topic of this blog post. This blog post is about the Notice To Preserve Evidence Letter, sometimes referred to as the Litigation Hold Letter. This has to be one of the most effective tools for gathering evidence that I have ever used, but yet one of the most overlooked tools that I know of. The Notice To Preserve Evidence Letter is very powerful, if worded correctly and explained correctly to the person it is being served to.

I have served these Notice To Preserve Evidence Letters for over 10 years, and although attorney’s seem to overlook using them, or at least seem to rarely use them, we have gotten evidence that we would not have gotten without using them. In one case we got video evidence that actually exonerated a client on drug trafficking charges, and in another case we got video evidence that assisted a client in securing a settlement from city government. 

Below is a photo of an old Notice To Preserve Evidence Letter that RMRI, LLC. used to get video evidence that resulted in our client obtaining a settlement from the city of Columbia, MO.

The benefit to the Notice To Preserve Evidence Letter is that it puts a burden on the person that it is being served to, that often times influences that person to turn over the requested evidence when they are being served rather than have to try to keep up with it and risk losing it. In the case mentioned in the previous paragraph, where our client was exonerated from drug trafficking charges, RMRI, LLC. served a Notice To Preserve Evidence on a local hotel for video footage in the time frame that the arrest and search of our client occurred, and we found evidence that the items that were found in the search did not belong to our client, nor did he have any knowledge that they were there. The evidence was compelling enough that the prosecution dropped all charges against our client. The hotel did not want to have to pull the video, store it, and be responsible for it, so the management decided to allow us to pull the video and process it the same day we served the the hotel with the Notice To Preserve Evidence Letter. We actually got key video evidence in this case before the local law enforcement agency that investigated this case did. In the other aforementioned case where our client got a settlement from the city, we also got that video evidence before local law enforcement did, the Notice To Preserve Evidence Letter in that case is pictured above.

Typically, Notice To Preserve Evidence or Litigation Hold Letters are used in civil cases, however I know of no case law, court rule, or procedure which bars them from being used in a criminal case. 

The Notice To Preserve Evidence Letter should be crafted by the Private Investigator in these criminal cases, since the Private Investigator should know what specific evidence to target, approved by the attorney, and then served by the Private Investigator. Serving the Notice To Preserve Evidence Letter is no different than process service, as a matter of fact it is process service. After the Notice To Preserve Evidence is served, the signatures are taken and the time and date are filled out, a copy of it should be put in the court docket. This allows the court to see that the party that was in possession of said evidence was put on notice to preserve that evidence in a legal matter. 

The Notice To Preserve Evidence Letter has been one of the most powerful tools that I have ever used in gathering evidence in criminal and civil cases.

RMRI, LLC. hopes to see this tool more widely used by attorney’s and private investigators to gather key evidence that may exonerate their clients in criminal cases or win judgments in civil cases.

Rick Gurley of RMRI, LLC.

A Case To Remember!

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For the past two days I have been in court in Boone County, MO. Tonight on 04/10/2012 I got out of court around 10:30 PM. I was there with one of my Technical Consultants on a very interesting case. I want to discuss this case a little here on this blog.

First of all; before I post about this case I think that there are some really outstanding people who need to be acknowledged. The Boone County Sheriff’s Department’s Cyber Crimes Task Force deserves a lot of recognition. My company has worked cases involving several Internet Crimes Units in Law Enforcement; and this team is by far the very best in the state of Missouri. Andy Anderson, Scott Richardson, Mark Sullivan, and Tracy Perkins are simply phenomenal Investigators that are highly skilled, well-organized, and impressively knowledgeable about their work. These Detectives are an example of what Law Enforcement should be. These Detectives make sacrifices that most people could not begin to comprehend, everyday! They see things that are beyond heart breaking, and somehow manage to keep their humanity and integrity intact; indeed they are very special people. They are incredible people who we should all be grateful to. These wonderful people are keeping our children safe in Boone County and the surrounding areas, and doing a most impressive job of it! They are honest, decent people that I am proud to have working as Law Enforcement in the county that I live in. We owe them a tremendous debt!

When I post about the types of cases that RMRI, Inc. often finds itself working, I have a policy that I never mention the name of the defendant on my blog. So, here in this blog entry we will simply call the person that was charged in this case “The Defendant”.

In the case that I am posting about tonight a person was charged with Possession of Child Pornography and Promoting Child Pornography, two very serious felonies that have a potential of sending the defendant to prison for thirty years if convicted of these two crimes. This person was a young college student when they were charged with these offenses. A college student doing what most college students did back when Limewire was a functioning piece of software. This person was downloading music and videos, and was curious about what they could get from Limewire. As you can imagine, as a college student this person’s curiosity was vast and even extended into wanting to view some adult content material. In the process of downloading files from Limewire this person also downloaded three files that can only be termed as “illegal content”. These three files are what constituted the charges that were filed against this person.

When the defendant in this case had their computer seized and had a computer forensics examination performed on their computer, there were literally hundreds for music and video files on the computer and three clearly identifiable illegal files on their computer. Due to these findings, the defendant was charged with Possession of Child Pornography for having the files on their computer and Promotion of Child Pornography for having these files in a shared folder on their computer.

Now there is no doubt that the defendant downloaded these files, there is no doubt that the defendant possessed these files, there is no doubt that these files resided on the defendant’s computer in a shared folder. These facts were well established by the The Boone County Sheriff’s Department’s Cyber Crimes Task Force . And I will say this, if that were all that it would take to be guilty of these crimes, then the defendant would be guilty. However, these cases are far more complex than this. In almost every crime there is an element of intent, except in a few crimes which are called “Strict Liability Crimes”. In these intent based crimes the Prosecution has to show that the Defendant knowingly intended to commit the crime. In this case that means the Prosecution has to prove that the Defendant intended to download thee files for the purpose of deriving some sort of sexual satisfaction by viewing these files.

In this case Tracy Perkins and Scott Richardson gave testimony as to their factual findings in this case. Both of these Detectives should be commended for giving honest, factual testimony with no embellishment whatsoever. I have come to expect that high level of integrity and honesty from the Detectives at The Boone County Sheriff’s Department’s Cyber Crimes Task Force .

Attorneys George Batek and Kathryn Benson questioned these Detectives on cross-examination thoroughly and these Detectives just relayed the facts of their case honestly and with no embellishment.  George Batek and Kathryn Benson are two SUPER Attorneys too, they did not miss a beat in this case. George and Kathryn are simply two of the hardest working attorneys that I have ever met!

George Batek and Kathryn Benson contracted with RMRI, Inc. to aid them on the technical aspects of this case about forty-five days ago. I chose to bring Steve Turner in on this case due to his extremely extensive knowledge of computers, the Internet, and working with people from novice computer users to advanced computer users in instructing them on how to properly use their computers and maintain their computers for over twenty years. Steve Turner was able to quickly develop a profile on the level of sophistication that the defendant possessed with regard to computers and the Internet-based on how the defendant used their computer. Steve Turner was able to demonstrate that the defendant was only a novice computer user and easily made some mistakes on setting their computer up and maintaining the software on their computer. Steve Turner gave Expert Witness testimony on exactly how the defendant managed to get the three files in question, and how it was entirely possible that the defendant mistakenly downloaded these files due to making some mistakes that only a novice computer user would make. Steve Turner is simply a phenomenal person with an impressive amount of experience and knowledge when it comes to working with computers, servers, the Internet, mobile devices, and telecommunications devices.

It is first necessary to say that The Boone County Sheriff’s Department’s Cyber Crimes Task Force did nothing wrong or incorrect. Their methodologies are sound, they are thorough, and they have a very impressive knowledge of Digital Forensics and Digital Evidence issues. Their work was never at anytime in question. The question simply came down to this: Was a Jury ready to send a young adult to prison for a long time and negatively impact their life for a long time over what may have very well been a simple mistake made by a novice computer user? And this Jury had the humanity and the wisdom to refuse to do so and to return a verdict of Not Guilty on both charges.

I have to admit that when the verdict was read I made a “whooping sound” that I felt quickly ashamed of afterwards, but this was because I really had some reservations about the wisdom of the Prosecution in charging this young person with these very serious crimes over what even looks like on its face to be a completely unintentional. I know that the Prosecutor was doing her job. And I am grateful that she too is a very tough lady with zero tolerance for these types of crimes. I have just never been sure in this case if it was wise to charge a young person with such terrible crimes. I mean, I have a hard time understanding the benefit to society in negatively impacting someone’s life with these types of charges for over what even on its face looks to be an honest mistake. But, I will concede that this Prosecutor is smarter than I am about these matters, and she has a level of understanding about the law that far exceeds my understanding of the law.

Despite my reservations about this young person being charged with these crimes; I was happy to be a part of this case. I was surrounded by really good and decent people on this case; two SUPER Defense Attorneys, four WONDERFUL Detectives that are just consummate Professionals at what they do, one of my Technical Consultants that I have become so proud to call a friend, a colleague, and a work associate, and a really nice, family that bound together with love for one another and showed that through their support of their family member, the defendant! In my mind, this was not a “win or lose case”; this was a case that restores one’s faith in people, in Law Enforcement, in the Family Unit and there is simply no better feeling than that!

 

 

 

 

 

 

 

 

 

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