When most people think of private investigations, they envision a swarthy unshaven retired police officer working for an equally swarthy and unshaven attorney taking surreptitious photos of a cheating spouse with an old camera. While that may have been somewhat true twenty years ago, the reality today is quite different. Today’s modern investigation firms understand that times have changed, and the space that defines the scope of their work has evolved into something quite different than even a few years ago. Among the best of these forward-thinking firms are the very few that have fully embraced the next generation of PI work, the Hybrid Investigation.
Digital evidence has been relevant in investigations for more than 40 years, but like many paradigm shifts, the effective collection and usage of digital evidence has been much more slowly adopted. Today there is almost always some aspect of a complex legal issue that includes digital evidence. Until the last several years, attorneys and business leaders, when faced with a complex legal issue, waited until an internal and possibly a criminal referral were well underway before realizing they needed an outside firm or firms to assist in the evidence collection and customized reporting. The main reason for this delay is generally due to the fact that most business leaders and many attorneys don’t fully understand the need or added value to bring in a private investigator early in the process.
Historically, the way that most cases develop is there’s a potential legal issue and the effected party begins investigating internally. At some point they realize they’re going to need an attorney, and then either task their in-house counsel or hire an outside counsel to assist. The attorneys take the internal investigation and quickly discover the investigation wasn’t thorough and hasn’t gathered the necessary evidence for their purposes. The attorney or business then hires a private investigator who may or may not have experience in dealing with complex cases. This investigator gathers documents, takes statements, does some surveillance, and turns in their report. They likely make a passing comment in their report about potential digital evidence that needs collecting. The attorney hires a company that specializes in collecting digital evidence and they return their report. When combining these two separate reports, the traditional (analog) investigation, and the digital investigation, the attorney realizes there were missed opportunities to gather evidence due to the two investigations having been done at different times. Often, they also realize the digital evidence is inadmissible due to accidental mishandling during the client’s internal investigation. Another common problem is that firms that specialize solely in digital evidence collection have no experience at producing useful reports. They return a highly technical report that lacks explanation and focus on relevancy to the case. Its due to these issues, that the Hybrid Investigation is the most effective way to tackle these complex issues.
Hybrid Investigations are private investigations where both the traditional and digital aspects of the case are investigated concurrently by one firm and ideally brought into the process as early as possible. There are numerous advantages of the Hybrid Investigation over a traditional model, among these:
- Eliminates accidental or intentional evidence spoliation in the investigation.
- Seamless Communication between traditional & digital investigators
- More thorough and defensible evidence collection
- Reporting tailored to the multiple needs of the client
One often overlooked aspect of relying primarily on an internal or solely traditional investigation is the potential for accidental or intentional evidence spoliation. Accidental spoliation of evidence often occurs because businesses task their own IT staff to gather and analyze digital evidence as part of the internal investigation. Not only do internal IT staff rarely have the training, experience, or certifications to properly handle digital evidence, but in many states, there are specific laws governing who can legally perform a digital forensic investigation. Traditional private investigators may also inadvertently taint the evidence due to their lack of experience or understanding the issues unique to handling and documenting digital evidence.
There is also the real possibility of intentional destruction of evidence. Many cases involve digital wire fraud, breach of computer security, or theft of intellectual property. In these instances, internal IT staff are often directly involved. Businesses, due to the general lack of understanding of IT, initially rely on their in-house IT staff to self-audit and conduct internal investigations. This is like asking the accounting department of Enron to self-report compliance to the Securities and Exchange Commission. Companies and attorneys should avoid relying on internal IT staff to conduct any aspect of an internal investigation related to digital evidence.
Hybrid Investigations utilize professionals from both the traditional and digital realms to attack an investigation at the same time. These two sides of one investigation essentially handle disparate aspects of the problem, but their skills are ultimately complimentary to one another. Traditional investigative techniques can generate opportunities for digital evidence, and likewise, digital investigations can produce leads for traditional evidence. If these two parts of the investigations can’t (due to non-concurrent investigations) or don’t communicate effectively, valuable information can be missed or lost. Firms skilled in Hybrid Investigations seamlessly merge these two investigations into one, creating a synergy unattainable otherwise.
Thorough & Defensible Evidence
The synergy created through Hybrid Investigation techniques ensures all possible evidence, both traditional and digital, are properly collected and analyzed. Hybrid investigative firms hire traditional investigators that thoroughly understand digital evidence, and while they may not have the training to actually perform the digital investigation, they speak the same language as the digital investigator and know the right questions to ask and where to look for digital evidence. At the same time, Hybrid Investigation firms ensure their digital staff fully engage with the traditional investigators to ensure digital evidence is preserved and collected in a forensically sound manner. This ensures all evidence is gathered properly and defensible in court.
When it comes to complex legal issues and evidence gathering, there is one primary question that people need to ask themselves: What is the purpose of the investigation?
There are potentially numerous answers to this question and typically there’s more than one, but the most often are:
- Internal Reporting (Executives, Owners, or Board of Directors)
- Civil Litigation
- Criminal Referral
- Insurance Claim
Hybrid Investigation firms know how to tailor a report to show the relevancy of all evidence and how both the traditional and digital evidence point to a single conclusion. These firms fully understand the multiple purposes their investigation serves, and tailor the report to satisfy those requirements. In many cases, where the client desires a criminal referral, they’ll be able to pursue and obtain criminal charges, where they otherwise wouldn’t have. This due to law enforcement’s lack of understanding of tech-centric issues, combined with their high case load limiting the amount of time they can spend on these cases. Hybrid firms know how to package a case for easier and more effective prosecutions.
Hybrid Investigations are essential in today’s digital world. Businesses and attorneys should take the time to thoroughly vet and hire the right investigative professionals for complex cases. Failing to hire the right firm could cost them time, money, evidence, and be ultimately detrimental in their case.
About the Author
John D. Shirley developed his investigation expertise serving 20 years with the Houston Police Department as a criminal investigator followed by a career in the private sector as a fraud examiner. As a Sergeant Detective he supervised the Financial Crimes Unit investigating various white-collar crimes including Fraud (all types), Embezzlement, Forgery, and Identity Theft. He also worked the Homicide Division, Internal Affairs investigations, Crime Analysis Unit, and conducted internal audits while developing and revising classified and civilian policies and procedures. Mr. Shirley provided consulting services to McCann for three years prior to moving full time to the private sector. Mr. Shirley continued his investigation expertise in the private sector serving in Special Investigations Units for insurance companies and became a national manager responsible for operations in eight states. His investigation skills include analytical and statistical work, intelligence and background investigations, interview & interrogation, forensic collection, and reporting in a variety of case management systems.
John is a Master Peace Officer and a Certified Fraud Examiner (ACFE). He is also a licensed private pilot and a certified rescue diver.
About McCann Investigations
In today’s complex legal cases, evidence is rarely singularly digital or traditional, but begins in one realm and quickly cross over into the other. The days of an investigation involving merely taking statements and photocopying documents are all but things of the past. Modern evidence gathering requires the agility to go where the evidence leads, no matter the source.
This not only means overcoming the challenge of understanding the ever-evolving web of digital evidence but owning the entire evidentiary space; The nexus of both the digital and the non-digital.
McCann runs the table in this space. We either have the digital or traditional expert you need on staff, or we know that expert…. personally. McCann operates its own dedicated state of the art digital forensics lab, staffed with certified technicians, supplemented with veteran law enforcement investigators, cybersecurity experts, and certified fraud examiners. McCann is the only turnkey solution for the gathering, processing, analyzing, and reporting of all types of evidence, no matter the source. Our team, drawn from both government service and private industry, has the resources, knowledge, and experience to provide expert testimony ensuring the evidence is both relevant and defensible in all proceedings.
McCann Investigations IS that nexus.