10. PRESENTING EVIDENCE FROM INSPECTIONS

Previous sections of this module have covered various aspects of the inspector's role in conducting inspections and gathering evidence. While EPA or State Attorneys can be expected to orchestrate the enforcement case generally, inspectors perform an integral function in providing the evidence of violations. This chapter focuses on the inspector's presentation of evidence during an administrative or judicial enforcement action.

10.1 ADMISSIBILITY OF EVIDENCE

Evidence is subject to rules which vary, depending on the legal forum (State or Federal court) in which the action is sought and the type of proceeding (civil, administrative, or criminal) in which it is to be used. However, certain general rules apply universally to the admissibility of evidence. To ease the burden of presenting a case, some elementary facts may be accepted as true without proof. This may occur in several ways:

Judicial Notice - A court recognizes facts as common knowledge. (For example, that 1 + 1 = 2 and that September 9, 1987, was a Wednesday.)

Admissions in the Pleadings - The parties in a case may admit the truth of certain facts in the written pleadings that they submit.

10.2 OFFICIAL DOCUMENTS

In the course of presenting evidence, documents are frequently used, including permit forms, laboratory analysis reports, letters, written contracts, and deeds. A custodian is frequently designated to keep many official government documents and can certify as to their authenticity through means of an affidavit.

NOTES:

10.3 SERVING AS A WITNESS

10.3.1 Discovery and Pretrial Preparation

The inspector acts as a witness when he/she signs an affidavit supporting an application for a search warrant. The inspector's role may require him to provide information in a case, even before the case comes to trial. The inspector may also be called upon to provide information to answer the opposing party's interrogatories or provide a deposition of his/her information and knowledge regarding the facility and any alleged violations. This process of "discovery" allows the opposing party, within the rules governing civil procedure, to obtain information. Of course, the inspector must always tell the truth and should also remember that this deposition may be used against him/her during crossexamination.

Giving testimony at a trial involves substantial preparation. The government attorney will go over the inspector's testimony carefully and indicate the type of questions which are likely to be asked on the stand by both him/herself and the opposing attorney. If, during cross-examination the inspector is asked, "Did you and your attorney talk about how you would answer the questions?," he/she should have no qualms about saying yes. Be sure to listen to the exact words raised by counsel. If the question is "Did your lawyer tell you what to say?," the inspector's answer should be different. In addition, witnesses should not only be familiar with the case and questions, but should have some practice in a courtroom format. In this respect, participation in a mock trial, including cross-examination, is often a very useful exercise.

10.3.2 On the Witness Stand

Once on the stand, the inspector should speak loudly and clearly enough to be heard. If the inspector needs time to think or recollect before answering a question, he/she should take it. If possible,

NOTES:

the inspector should face the judge or the jury to answer any questions that may be asked. The following points should also be kept in mind when serving as a witness:

The inspector should provide only the specific information asked for and should not volunteer additional information or expand on the answer.

If a yes/no question is asked but neither is an appropriate answer, the inspector should say so.

If the inspector does not understand or cannot remember an entire question, he/she should say so.

If the inspector notices that he/she has made an error, that error should be corrected as soon as possible.

If the inspector does not know the answer to a question, he/she should say so.

If the inspector needs notes to recall some of his/her testimony to answer a question, request the court's permission to refer to the notes and remember that opposing counsel has a right to see them.

The inspector should not start answering until a question is finished and should stop answering a question as soon as an objection is raised, even if he/she stops in mid-sentence.

10.3.3 Cross-Examination

The main consideration during cross-examination is to stay calm. The opposing attorney will try to cast doubt on what the inspector has said. When this occurs, the witness must not get angry or be flippant. He/she should listen carefully to each question and watch out for purposeful misquotes of what has been previously said. If the inspector becomes uncomfortable, he/she should pause and take a deep breath to collect his/her thoughts. The witness should not look at the attorney for assistance.

Normally, the testimony of a witness will consist of fact. However, an "expert witness" may also be requested to give limited opinions based on specialized expertise in a given subject. An expert witness must

NOTES:

first be established or "qualified." Typically, education and experience will be described to the court. These qualifications will probably be cross-examined by the opposing counsel. Experts' opinions are presented through the use of hypothetical questions that relate to the facts of the case.

NOTES:

11. LIABILITIES

EPA representatives should be aware of potential liability that may arise while acting as inspectors or witnesses. While inspecting, the inspector is an agent of EPA and is generally safe from liability. However, problems can occur if the inspector does not stay within the limits of his/her authority. The inspector may incur personal liability for actions taken beyond the scope of this authority. In order to protect him/herself from liability, the inspector must identify himself properly. An EPA I.D. can serve this function if it is presented. As an EPA or State inspector or an authorized EPA contractor, he/she is also protected in the event personal injury occurs during an inspection. However, the agent might lose this protected status by acts such as threatening a permittee, using force to enter premises, going beyond his/her inspection authorization, or accepting money (a bribe) from a permittee.

Serving as a witness can also result in personal liability if the inspector commits unnecessary, overt acts. For example, lying under oath could subject a witness to prosecution for perjury. Similarly, disturbing the court could make the witness liable for contempt.

NOTES: