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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
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