I've been doing writing and teaching on legal aspects of use of force for quite a while now (first article was published ... 30 years ago, more or less). My co-author does a lot of work with both agencies and plaintiffs, and I assist him with the legal aspects of such things as I can. The amount of both ignorance (on both legal and technical issues) and intentional misconduct directed at officers at the manager/executive levels in LE is staggering. I've had to correct, rather brutally, more than one low functioning soup sandwich with stars on his collar and delusions of adequacy. As for lawyers, I'd be surprised if there as many as 2000 in the whole U.S. who actually know enough about use of force to have a valid opinion, let alone litigate a case.
I wrote this elsewhere a couple of years ago. At that time, the commentary from Nyeti written on a forum now closed was itself a couple of years old. Yes, it is the same Nyeti who posts here under that name. He is very savvy and has a lot of experience in investigating OIS(es). I am leaving out the direct/quoted commentaries from he and others because a) such is not generally allowed here, and b) I don't have permission to post them.
"Nyeti wrote a great analysis of this on another forum a couple of years ago. After reading it, I gave some consideration to the evidence rules, specifically those pertaining to relevance. (ER 401, 402, and maybe 403.)
ER 401:"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
ER 402: All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state. Evidence which is not relevant is not admissible.
ER 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Having done so, I concluded he was right. The condition of the firearm at the time of the shooting should be addressed by a complete armorer/forensic exam that is done promptly. As long as there is no issue with the function of the weapon(s), and the projectiles are properly connected to any involved weapon(s), the actual firearm will not address any issue that needs to be proven. As Nyeti noted, the few cases where there may be an issue should be evident pretty quickly, but they will be rare. More than 2 working days to conduct that analysis and return the firearm is approaching clownshoe level. Retaining a firearm for some stupid period and having it damaged as a result is a good way to create department liability for that damage."
(Condition at the time matters in case of a subsequent allegation of negligence. Having been documented, the value of the firearm itself as evidence is nil in an intentional shooting, as there will be no question as to who fired, from what firearm, etc that cannot be proven without the firearm.)
A further response from my later in the string:
"The problem here is that like many aspects of legal stuff for LE, there is a mix of technical knowledge and legal knowledge that impact the way things are or should be done. Communication between people with those skill sets is often poor, at best. Anything to do with use of force tends to really show the disconnect, and most lawyers are clueless; even prosecutors. Also, as noted by other posters, logistics/resources can play a part. The lab here is so underfunded that anything that gets done in a timely manner is damned near a miracle. (I had a firearms exam I needed for a case and the ETA for results was about 9 months after the expiration of the time for trial. The examiner had NO CLUE of the time limits - not his fault. Like most of LE, the training for cops and these lab folks about the realities of trial tends to be on the far side of poor.) My best guess is that an appropriate exam for these purposes can be conducted in a couple of hours, depending on the platform, but I'll want for someone more savvy on such to chime in; maybe I'll contact a firearms examiner I used in a recent trial who did a hell of a job for us and ask him, if I get time this week.
Rules of Evidence: Being as I am in Washington, I use the links from the Washington Courts' website: "www.courts.wa.gov". On the left side of the page is a collection of links, one of which is court rules. On that page, look for rules of general application; the ERs are on the bottom of the list as I recall. (This is one of the websites I have saved on my issued iPad for use in court; the link to the jury instructions helped me out a LOT in a trial a few days ago while we argued about a specific jury instruction the defense sought.)
I am pretty sure one can easily find via Google the Federal Rules of Evidence; most of the states and the Feds model on each other since we are talking about a couple thousand years of evolution from Roman times through Anglo-Saxon jurisprudence. I'd guess that in any given state the RoE are in the rules of court. Often you will find that a law professor or other serious nerd has written a state practice specific treatise with annotations; I carry my copy of Tegland's Washington practice commentaries to trials. Any variation from state to state, and from the Feds, will be modest at most, and a decent commentary will show any difference between the ones applicable to your state and any more typical rule."
