The defense EPA process involves investigating an event to learn how it happened and then evaluate whether it could have actually occurred as reported. Establishing the foregoing can often reveal new avenues to determine, among other things, the method of operation (M.O.) of the perpetrator, or develop a more informed basis to speculate – for example – as to physical characteristics of a perpetrator, etcetera. In turn, it could provide a defense attorney with a basis to successfully challenge the government's identification, or proof, or allegations, or the case in general. EPA is neither the function of a defense counsel, or prosecutor for that matter,  nor is EPA the arena in which either counsel is usually competent. Do not expect the lawyers on either side to know what to look for. You must take them by the hand and wade through it with them. I say that in all seriousness and respect for the lawyering profession (with just a smidgeon of  tongue-in-cheek) but the fact is that EPA/CSI is not their bailiwick.
          Nevertheless,  many of  these EPA prima donnas are also strategists and tacticians with acute insight and an ability to perceive, recognize, interpret, process, and evaluate the evidence, and that is why they are so important to any litigation! They must be able to analyze and interpret the crime scene to identify, or eliminate, the actions that led to the evidence being deposited there. Once over that hurdle all things are possible.
           In criminal cases the goal of the EPA is to examine, evaluate, and to the extent possible, uncover "reasonable doubt" or contradictory evidence. There is no question about this aspect of litigation, uncovering reasonable doubt is, and should always be, the investigative focus. Keep in mind however, the key word is "uncover", not "create". The phrase "the truth will set you free" was never more applicable than in this instance. An EPA must be a truth seeker, a truth teller, a thinker, and a philosopher.
            Keep in mind as you read on that one must learn to walk before one can run, and all criminal defense investigations will not involve murder. Further, in many states murder carries no greater penalty than the charge of being an habitual criminal. Both can bring life sentences. The point is that any crime where one's liberty is at stake for a long term, say a day, warrants a full, in depth, investigation. That one-day reference is not meant to be funny, one day in jail is a long time as far as I'm concerned.
            There follow some of the cases in which I participated with some rather talented attorneys who managed to gain dismissals, acquittals, or hung juries, all based on the way the evidence was perceived, collected, interpreted, and evaluated through Event Probability Analysis and presented at trial by the defense attorney.

          Having a EPA on hand to interpret and evaluate blood evidence found at a crime scene can be critical to developing the defense theory. Let's say four or five oblong drops of blood, more or less in line, and evenly spaced, are observed at a crime scene. It goes without saying that the investigator will collect what blood is found for DNA testing, etc. In that vein - before it is collected - the P.I. should contact the [blood] expert who will do the analysis and find out how he [the blood expert] wants that evidence collected, stored, and shipped, to his laboratory. Contrary to popular, layman, belief, a plastic baggie is not the ideal storage container for blood, or tissue, samples.
           But, getting back to the matter of interpreting the blood evidence, it may be that examination of the droplets will reveal small, finger-like, extensions on the blood drop. Incidentally, if there are no fingerlike extensions, just a nice round droplet, then the "source" itself was probably not moving and probably close to the surface upon which the blood droplet landed! In other words if blood is dripping from a finger wound and the injured person is motionless, it will simply drip straight downward. No heavy math there. In that scenario even the height from the source to the floor or ground is determinable. How? By simply releasing blood droplets from different heights until the same  shape, size, and pattern, occurs. Thereby, the height from source to floor [ground] can be estimated with reasonable accuracy. So, if a witness had observed that an individual had a bleeding wound at shoulder level, and the blood  sample under consideration was from that wounded individual, then a reasonable estimate of that person's height could be determined through simple EPA theorizing and testing. In such a case, as I said earlier, one would simply drop blood from various heights until a similar, or identical, blood  pattern is created. Measuring the distance from the ground to the release point will give you height of the wound. After that you might be able to work out some head & neck height measurements and, although that would be speculation, it is a method of developing and compiling reasonable doubt.
           If there are "fingers" stretching outward from one side of the droplet then the  pattern itself will show the direction the blood source [person/animal] was moving. Of course, blood drops can be launched from a stationery source too, a flick of the wrist for example, and the location from which the blood emanated might be accurately pinpointed; again by analyzing the blood pattern where it landed. That is a sort of reverse analysis. As we know the direction the blood drop traveled is determined by the direction in the pattern towards which the finger-like extensions point. Reversing that analysis, the "fingers" become the "tail" of the droplet; the primary deposit being the head. In that case the "head" will point directly back towards the source.
           In that scenario even the height from the source to the floor or ground is determinable. How? By simply releasing blood droplets from different heights until the same  shape, size, and pattern, occurs. Thereby, the height from source to floor [ground] can be estimated with reasonable accuracy. So, if a witness had observed that an individual had a bleeding wound at shoulder level, and the blood  sample under consideration was from that wounded individual, then a very reliable estimate of that person's height could be determined through simple EPA theorizing and testing. In such a case, as I said earlier, one would simply drop blood from various heights until a similar, or identical, blood  pattern is created. Measuring the distance from the ground to the release point will give you height of the wound. After that you might be able to work out some head & neck height measurements and, although that would be speculation, it is a method of developing and compiling reasonable doubt.
           Your attorney employer will have to make the best of the information developed through your investigation. Let's say your client, the defendant, is four feet tall and you establish from your testing that the blood source was five feet above ground level. That is significant and could itself, establish reasonable doubt . The possibilities are limitless if one is resourceful and imaginative.

(1)          In this case an individual complained to the police that the defendant fired shots at him as the complainant was driving away from the defendant's property. Incidentally, just for information purposes, the client's property was posted, "no trespassing". The complainant charged that one of the shots fired at him hit his vehicle and knocked the side mirror off of his pickup truck. Based on the "victim's" unsupported allegations, the police charged my client with the felony of "assault with a dangerous weapon"! That's right, no investigation, unless you consider that the police observed that the outside mirror was missing from driver's side of the truck, because that observation was the extent of their investigation! In contrast, I examined the locus where the event purportedly occurred and observed tire marks where a vehicle had veered off the tree-lined, dirt road on the client's property. At one point along the tire track there was a tree with a gouge mark at about the same height from the ground as the mirror of the complainant's truck. A few feet from the gouged tree, under some scrub bushes, was an external truck side-mirror and mount with the mirror glass intact! A piece of bark was wedged into its hinge. With that information, I speculated that this was the mirror from the complainant's truck and that it had been ripped off the truck when it collided with that roadside tree. Remember, uncovering a basis for reasonable doubt is the defense investigator's goal.
             The foregoing notwithstanding, it was still necessary to establish that the truck mirror had not been shot off the truck so, based on the complainant's version of events as set out in the police report, I created a shooting scenario test, with particular attention to distance, angle, ammunition, firearm, etcetera, with the prosecution's evidence in mind. A 30 x 40 inch sheet of smooth surfaced, quarter-inch-thick, white, foamcore was positioned as a backdrop to trap the shotgun pellet strikes for the record. That done, I fired at the foamcore backstop, two rounds of ammo (identical to that described in the police report) from the defendant's shotgun; the one used to perpetrate the alleged crime. (Don't ask me why the police hadn't seized it, I don't know.) Anyway, the result was that while many pellets hit the foamcore, the pattern was so broad and the spacing between the pellet strike-marks so great that, at worst, only two, or three, pellets could have struck the mirror at the same time.
             Next, I placed a mirror (exactly like the found at the "crime scene") on a perch with a pristine 30 x 40 inch foamcore back and fired a second round directly at it, at a right angle, in order to deliver the greatest velocity-at-impact damage. The pellets struck the foam-core all around the mirror and, if any struck the glass of the mirror, did not even mar it, let alone break, it. Nor did the shot impact even budge slightly the mirror from its unsecured position on the perch. Reasonable doubt was established unequivocally and the defendant was found NOT GUILTY! (Atty Robert Perry, Wareham, MA).
(2)         Here's a case where I never actually met the defendant. The event occurred in Providence, Rhode Island. Witness error (or fabrication) was one of several factors I discovered which, when passed onto to the State’s Attorney by the defense counsel, led directly to a dismissal.
             It began with a shooting in the dark hours of the early morning in September 2002, on the prestigious JOHNSON & WALES COLLEGE campus off Weybossett Street in the downtown area. The witness claimed he saw the shooter who was seated on the passenger side of a sport utility vehicle. The witness said the shooter, seated on the passenger side of an SUV, fired a gun directly across the front of the driver out through driver’s window and wounded the victim.
             The first problem was the "eye witness" identification. The circumstances under which the witness viewed the incident were simply not conducive to visual acuity. The defendant was a very dark complexioned black man. By his own estimate, the witness viewed the event on a downward angle from a second story dormitory window about two-hundred feet from the shooter’s SUV. That’s almost a football field away. Remember now, the shooter was a dark-skinned, black man, in the dark interior of a moving vehicle, in the dark of night. INCREDIBLY the witness identified the "shooter" from a mug shot! Of course the identification didn’t hold up.
             Additionally, in my investigation of the crime scene, I found and photographed twenty-seven video monitoring cameras on campus including one owned by the Providence Police Department and that camera actually recorded the vehicle involved in the shooting. As it happened, although it was caught on the tape, the police reported that the images were not adequate enough to identify even the make of the vehicle. Yep, the police had a video tape and inexplicably they did not disclose it to the defense and, for that matter, they had not disclosed it to the State’s Attorney either.
            The hapless prosecutor was embarrassed and apologetic and rightfully so, but it wasn’t over yet, the government’s case went farther downhill from there. The police also came up with a firearm similar in caliber to that used in the shooting. The discovery of the firearm had its own problems. It was purportedly found in a trash can (in the vicinity of the shooting scene) on Weybossett Street during a third search of that very trash can, by a third police officer! The first two times it had been missed, or the last time it was found; depends on how you look at it. I have no doubt as to the integrity of the officers, but the failure of the first two officers to conduct a thorough search cast a bad light on the discovery by the third officer who was more thorough, or luckier. Either way, it did not help the prosecution’s case. Moreover, the police had not processed the firearm, cartridges, or magazine, to develop fingerprints or DNA evidence. Nor had they test-fired it to establish that it was capable of discharging a bullet. Nor did they fire the pistol to recover the bullet to compare it to the bullet that wounded the victim! That meant there wasn’t any ballistic data by which to establish conclusively that the firearm from the trash can was in fact the firearm used in the shooting. So, no fingerprints; no link to the defendant; no ballistics, no linking of the firearm to the event. CASE DISMISSED. State vs. Fortes, Defense Attorney Sam Sutter, Fall River, MA.

 (1)      Here's a situation with which we all can probably identify, even if you've never had an accident. Consider this: You are stopped at an intersection and have a view for about three hundred feet in both directions. You are going to make a left turn so you look to your left for a second or two and see no vehicles coming. Then you look to your right for another second or two and find that direction is also clear of traffic and apparently free of danger. One more look to the left and you move out into traffic and WHAM, "out of nowhere" a car slams into you from your right. Bad enough you've just been creamed but, you're probably going to be cited with some type of endangering charge based on your failure to use care in starting, turning, or whatever. And, what's more, you are probably going to blame yourself figuring you were in the wrong.
            So, now you call in a EPA who will evaluate the case and scene and he may find from the evidence (crush damage to your car plus tire marks on the road, etcetera) that the car that collided with your car may have been traveling at a speed greater than 60 mph before the collision. Of course, that has to be established by a qualified accident reconstructionist, but what does that mean to you? Well, with that information and a little thought you will discover that at a vehicle traveling at 60 MPH covers about 90 feet per second. So what? Well, that could mean that when you last looked to your left, then right, and then back to the left, perhaps four seconds elapsed -- now stay with me on this because this is where the EPA's "sixth sense" comes into play (in this instance though, it's just arithmetic). By analyzing the crime scene analysis, you may be able to show that the colliding vehicle [the car to your right] was actually about 360 feet away (Four seconds; 90' per second @60mph, that's 360') and out of your view when you checked [in both directions] for oncoming traffic! In that four-second time-span the guy in the other car that was not in your line of sight when you checked, traveled about 360 feet and crashed into you. That probability analysis could have established reasonable doubt as to culpability on your part, and that translates into a NOT GUILTY! (Atty Jay McMahon, Buzzards Bay, MA)

(2)      But there's more! Speeding charges have been alleged and proved wrong time after time through crime scene analysis which resulted in establishing reasonable doubt. Here's one such case. A police officer who was parked in a restaurant parking lot reported and testified he saw a car speed past his position and he immediately gave chase accelerating from a dead stop to a speed of eighty-five miles per hour at a certain point over a distance which the defense investigator measured out to about 362 feet from the officer's claimed parked, position. Having purportedly "attained that 85 mph speed" over that short distance, he claimed he "clocked" the client at 85 miles per hour over an additional distance of one-eighth of a mile; the minimum distance required under Massachusetts law to establish a speeding violation. The officer testified unequivocally that this pursuit went from point "A" to point "B" and described with particularity and definitively, the landmarks and distances setting off those parameters. (Note: To save you the effort, one-eighth of a mile equals 660 feet; an equation which apparently eluded the officer, but not the Court.) The defense investigation at the scene showed the distance from point "A" to point "B" (start to stop) was 542 feet in its entirety, well short of the required [clocking] distance!
            In addition, an expert mechanic -- with twenty years experience in building, maintaining, and test-driving, race cars -- examined the police cruiser specifications, made various calculations and concluded that the police cruiser involved did not have the gear ratios in either the transmission drive train, or other components, to attain a speed of 85 MPH in the short distance claimed, not even if the cruiser had been equipped with a "nitro accelerant injector!" NOT GUILTY! (Atty Jay McMahon, Buzzards Bay, MA)

(3)        In still another case, an individual had been charged with running a woman off the road at a particular location. At the scene the I immediately observed that there were no shoulders on the side of the road at the point where the woman claimed to have been forced off. In fact, at that very location an embankment rose straight up to a height of five feet (Exhibit 5) and forming a vertical from the edge of the road surface for a distance of about one hundred feet, so it was physically impossible for the woman to have gone off the road where she said she did. Further, I examined the woman's car and found there were no scratches or other damage to her car and no marks on the embankment itself which might indicate a car had struck, or grazed it. That information, uncontested by the police at a magistrate's hearing, clearly established reasonable doubt and resulted in no complaint being issued. (Atty Jay McMahon, Buzzards Bay, MA)

(4)        Yet another vehicle case involved a nighttime [police] stop of a car with windows tinted so heavily that they were nearly opaque. In that case the police officer wrote in his report that while following the subject vehicle he observed "an object hanging from the mirror inside the vehicle in the center of the front windshield." He further stated that the said object "obstructed the operator's view." That phrase was a necessary element of one of the offenses charged against the defendant. To evaluate the officer's allegations, I had the client -- at the same hour of the night, under identical natural and artificial lighting conditions -- drive over the entire route depicted in the police report right to the point where the "stop" occurred. I saw that at no time was the interior of the client's vehicle, particularly the center area of the front windshield visible from behind, or even alongside. The event probability analysis of the crime scene established reasonable doubt and resulted in a NOT GUILTY! (Atty Jay McMahon, Buzzards Bay, MA)

(5)        And how about this sweetheart of a case! A "multi-jurisdictional" police officer stopped and arrested an individual for driving under the influence of alcohol. It happens everyday and I truly thank the police for watching over us and protecting us, however, this was a little different from the run-of-the-mill case. As required in Massachusetts a citation was issued, and the defendant was eventually released on bail and scheduled for trial. In the interim, I examined the scene of the stop/arrest and found that the officer had alleged the crime occurred in town "X" when, in fact, as suspected by the attorney from the outset, it had actually occurred in the adjacent town "Y" . Coincidentally, in this instance, the two towns, although having adjoining borders, were in different court venues. This led to a not guilty verdict based on the fact that the Court lacked jurisdiction. Remember that, this was not merely dismissed; the defendant was found NOT GUILTY!
            But, incredibly, there's more, the District Attorney's Office re-filed against the defendant charging the same offense; this time in the proper jurisdiction. I know you readers have sniffed this out already. If you're thinking "double jeopardy", you're right. Case was dismissed upon Defense Motion after jury was impaneled and first witness began testifying.
            A very important lesson here is that every scrap of information must be scrutinized and evaluated! As shown in this matter, even the motor vehicle violation citation itself contained exculpatory evidence and the defense counsel was alert to it. The citation reflected the correct town of the event, but the "multi-jurisdictional officer" charged it in the wrong venue. (Atty. Julieanne Feliz-Kidd, Westport, MA)