Can Lawyers Collect Evidence in a Case?

There is one big misconception about evidence and who can gather it. I can tell you upfront, that police aren’t the only people who do. In fact, almost everything a lawyer requests, asks about, or collects, is to evaluate it as evidence. 

We are going to discuss a few different types of evidence attorneys collect, why they collect it, and how they use it. I will also give a great example of how lawyer’s gathering evidence can change a clients life forever. 

First, not all lawyers are equal in their ability to look for and gather it. Many are limited only to their own experiences. In other words, they don’t necessarily know what they don’t know. There is a requirement to think critical about what is potentially out there and also pay attention not only to what you can see (also called patent evidence), but also what you can’t see (latent evidence), and also be knowledgeable enough to recognize what the absence of actual evidence is telling you (negative).  

Like many things in life, the identification, recognition, gathering and preservation of evidence are very specific skills, ones that are not taught in law school. In our firm, we have attorney Earner, who has trained in some of the most respected and well recognized investigative and evidence gathering programs in the US. He also spent over 7 years conducting serious and sensitive investigations at the highest level of government as a special agent and gathered evidence from all across the globe to prove or disprove events. Every time a new client is signed on with the firm, Attorney Earner helps create what we call an investigative plan. This is a written road map for what we need to gather to prove our case, which of course takes evidence into consideration.

So what are the types of things that lawyers collect? Most types of evidence fall into one of the following categories:

• Testimonial 
• Physical 
• Biological
• Forensic
• Electronic

What is testimonial evidence?

This is what most people think of when they picture standing on a witness stand and being sworn under oath before you speak in court. That is the most popular type that is depicted in movies and all those great lawyer and police shows.  Formally, testimonial evidence is provided by someone under oath. However, there are other types as well that happen outside of court that may be useful in a case or claim.

Sworn statements or affidavits are also a form of testimonial evidence (although some people may disagree with this exact designation). Basically, anything that contains a person account of a situation is what we consider testimonial. Therefore, a medical doctors note, police report or ambulance report may fit into this as well. However, if a doctor runs a lab test and documents the result, we no longer consider that testimonial, it is now forensic (we will explain that in a minute). 

Similarly, depositions are also a part of testimonial evidence. They are a far more formal than interviews and sworn statements because they are given in an environment where both the plaintiff and defendant (or their counsel) are present, as well as a court reporter or notary public (in Maine). Depositions are a form of testimonial evidence that could be used in court, because they are conducted in a formal setting with all parties present.

The key is that testimonial is any evidence where a human documents their personal account of what they saw, heard, felt, smelled, tasted, or had any sort relevant information about the incident or situation.  

Important note: When we discuss testimonial evidence in this article, we are talking collecting it in the investigation phase of a claim or case. Not the trial phase. When a person observes a situation and has information that is relevant, they will need to be present in court to testify in person and be available for cross examination. This is a critical part of the judicial process and a right that is guaranteed in the US Constitution as the Confrontation Clause in the Sixth Amendment (for criminal cases only), and as a fundamental right of Due Process Clause in the Fifth and Fourteenth Amendments (both criminal and civil).  In a trial situation, a sworn statement is not the actual evidence, even though we (as lawyers) collect and evaluate them during the investigative phase of a case. It is an important distinction.  

What is Physical Evidence?

Physical evidence is tangible and is not of biological origin. Basically, this is anything that is not alive or was not created inside of a living being. For example, lets assume an investigator found a bloody hand print. The blood, originated from inside a living being, and is therefore biological; however, the fingerprint originated from outside the living being and is physical. I know –  it seems crazy – but there needs to be a line somewhere.

Lets make that same bloody hand print a little more complex. Lets assume a forensic scientist found a skin flake inside the “lifting” (which means collection as evidence) of the bloody hand print and is able to test it for DNA. The DNA evidence is biological, but the skin flake itself is most likely physical (although you could have detectives, investigators and forensic scientists argue that designation like it was politics).

There are two overarching types of physical evidence: latent and patent. 

What is latent evidence?

Latent simply means something that is not normally visible. We have all seen the shows where police dust for prints or use alternate light sources to find semen, urine, blood or saliva.  They are looking for latent evidence.

What is patent evidence?

Patent evidence is evidence that is easy to see and find. For example, you can usually easily see what happened in a car accident simply by looking at the vehicle and its damage. You can also see who rear-ended who by the location of the damage. That is patent evidence. 

Locard’s exchange is the principle that says in every physical contact, one object (or person) leaves something behind and that same object (or person) will also take something away with them. As lawyers, we always look to apply this principal in our investigations as well. Take for example a person who denied they hit another vehicle with their car, we would approach the situations and look for ways to prove Locard’s exchange principle by looking for paint color transfer, measure heights of bumper against the damage area and so on. We would look to see what evidence was left behind and what evidence was taken away from the incident. 

What is Biological Evidence?

Biological is any evidence that originates from inside a living being or is alive itself. The most common examples are blood and DNA, but urine, semen, and even certain bacteria can all be forms of biological evidence.

When Attorney Earner was a Special Agent, he used samples collected from a persons shoe to grow a bacteria that was found in an area that the person said they were not ever in. There was no way for the bacteria to be present on their shoe if they weren’t actually there. It did not mean the person did something wrong, it was merely evidence that they lied about where they were at the time of the incident. 

Attorneys can use biological evidence to prove things like physical presence in an area (like trace DNA found on the hood of a vehicle that struck a pedestrian) or paternity of a child. There are numerous uses for biological evidence. That is, if you know what to look for. 

What is Forensic Evidence? 

Forensic evidence is any type of physical, biological, or electronic evidence that is scientifically proven to be accurate through a methodical testing or retrieval process that has been tested and found to be reliable and true. 

Examples of forensic evidence are lab reports showing blood alcohol levels after a DUI crash, or a a scientist who can explain how an incident occurred based on how blood spatter patters were established. This is usually presented in court through someone called an Expert Witness. They are high trained, well educated, and work in a very specific job that uniquely qualifies them to run tests, review data or information, and give well reasoned opinions or results. 

What is Digital Evidence?

Digital evidence is any evidence that is stored electronically in binary form. Binary form is a way to store, transmit and display information between computer systems. It is essentially a grouping of 1’s and 0’s that give specific commands to computers. There are special scientists who conduct reviews of digital devices called Digital Forensic Examiners.

Binary form means the use of computer system that represents numbers, letters, commands, images and sounds using only 1’s and 0’s. The number 1 and zero are strung together to make up what is called binary code and it is the primary way computers communicate and present information.

Want to try Binary Code? You can go to this website: Click Here and copy and paste the following code into the top box.

01000101 01100001 01110010 01101110 01100101 01110010 00100000 00100110 00100000 01010111 01100101 01100001 01110110 01100101 01110010

Note: You have to switch the middle box to “binary numbers to text”

Very recently there was a man who was able to prove he did not commit a crime that carries a life sentence through the use of digital evidence. Watch his story. 

Evidence is critical in every case we do. It is vitally important to work with a law firm and lawyers who truly understand it, how to find it, and how to present it to help you win your case. We hope this answers your basic question about whether or not Lawyer collect evidence and gives you a little insight into what types of evidence lawyers collect. If you have an question about evidence in your civil case you can feel free to reach out to us. 

Earner & Weaver is here to help. It is always free to speak with us. If you need to speak with a lawyer about a potential claim involving an injury or disability, please call us at (877) 862-4635 or use the form to submit your information to us. We will gladly help you understand your rights and options.