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Witnesses - 14134_358
Legalman 3 & 2 - Navy Lawyer / Jag training guide manuals
Classification of Report
l The fact that all social security numbers were obtained  from  official  sources .  An  attorney  work  product  statement  when  a claim, or litigation by or against the United States, is reasonably   possible l  Any  other  information  necessary  for  a  complete understanding  of  the  case Do  not  include  a  synopsis  of  facts,  recom- mendations, or opinions in the preliminary statement. These should appear in the pertinent sections of the investigative  report.    It is not necessary for the IO to provide an outline of the method used to obtain the evidence   contained   in   the   report.   A   preliminary statement does not eliminate the necessity for making findings of fact. Even though the subject line and preliminary statement may talk about the death of a person in a car accident, findings of fact must describe the car, time, place of accident, identity of person, and other  relevant  information. Findings of Fact Findings of fact must be as specific as possible as to  times,  places,  persons,  and  events.  Each  fact  is  made a separate finding. Each fact must be supported by testimony  of  a  witness,  statement  of  the  IO, documentary evidence, or real evidence attached to the investigative  report  as  an  enclosure. Also,   each enclosure on which the fact is based must be referenced. For example, the IO may not state: “The car ran over Seaman  Doe’s  foot  ,”  without  a  supporting  enclosure. He or she may, however, have Doe execute a statement such  as  “The  car  ran  over  my  foot.”  Include  this statement as an enclosure and, in the findings of fact, state: “The car ran over Seaman Doe’s foot,” referencing enclosure (X). When read together, the findings of fact should  tell  the  whole  story  of  the  incident  without requiring reference back to the enclosures. The IO may only make findings of fact that are supported   by   a   preponderance   of   evidence.   A preponderance  is  created  when  the  evidence  as  a  whole shows that the fact sought to be proved is more probable than not. Weight of evidence in establishing a particular fact is not to be determined by the sheer number of witnesses or volume of evidence, but depends upon the effect of the evidence in inducing belief that a particular fact is true. In order that the acts of a deceased member may have caused harm and/or loss of life, including his or her own, through intentional acts, findings of fact relating to  those  issues  must  be  established  by  clear  and convincing evidence.    Clear and convincing means a degree  of  proof  beyond  the  preponderance  of  evidence discussed earlier. It is proof that should (1) leave no reasonable doubt in the minds of those considering the facts and (2) create a firm belief or conviction. It is that degree of proof that is intermediate, being more than a preponderance,  but  not  reaching  the  extent  of  certainty as  beyond  any  reasonable  doubt. If the evidence is in any way contradictory, the IO still must make a factual determination in the findings of fact section. The following problem should make this clear. Problem. The enclosures in an investigation reveal the following information. Mr. Doe states he had seen a vehicle speeding by him at 90 mph; he was almost hit by the car; he does not own a car, is 80 years old, and has not driven since 1945. Mr. Hatch, an off-duty police officer, states that, as the car passed him, he glanced at his  speedometer  and  he  was  traveling  35  mph;  he estimates the speed of the other car at 45 mph. The police report reveals that the car left only 7 feet of skid marks  on  dry,  smooth,  asphalt  pavement  before stopping. How should the IO record this information? Solution.  The  IO  should  note  the  conflicting account in the preliminary statement as follows: “Two conflicting  accounts  of  the  speed  of  the  vehicle  in question appear in witness statements, but only encl (x), the statement of Mr. Hatch, is accepted as fact because of his experience, ability to observe, and emotional detachment  from  the  situation.”  Findings  of  fact  should reflect  only  the  IO’s  evaluation  of  the  Fact:  “That  the vehicle left skid marks of 7 feet in length in an attempt to avoid the collision (encl [x]); “That the skid marks were made on a dry, smooth, asphalt surface (encl [y]); and “That the speed of the vehicle was 45 mph at the time brakes were applied (encl [z])”. In some situations, it may not be necessary to show a discrepancy in the preliminary statement. In other situations, it maybe impossible to find a particular fact. If, in the opinion of the IO, the evidence does not support any particular fact, this difficulty should be properly noted in the preliminary statement as follows: “The evidence gathered in the forms of encls (x) and (y) does not support a finding of fact as to the . . . and, hence, none is  expressed.” Only  rarely  will  the  conflict  in  evidence  or  the absence of it prevent the IO from making a finding of fact in a particular area. Thus, this should not be used as a way for the IO-who is either unwilling to evaluate 13-9

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