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    Sanitarians today are frequently faced with the challenge of taking someone to court.  In the past this situation was looked upon as a failure of a program.  However, in our complex, structured society there are many people who are not motivated to environmental quality and public health by logical education or energetic persuasion.  For these intransigent persons, the sanitarian may need legal force to secure compliance, to demonstrate the extent of community concern for public health, and to provide continuity in program administration.  Since going to court is usually the last resort and there is usually only a single victor, the sanitarian must be prepared to win the case.   Winning the case requires proving the environmental health violation.  In State v. General Motors Corp., because Ohio failed to prove the essential element that a spill of 300 to 500 gallons of solvent escaped to natural waters, General Motors was acquitted.

    All too often the sanitarian assumes it is the prosecutor's responsibility to prove the case.  This is a false assumption that can lead to distrust of and antipathy to the prosecutor.  The relationship between sanitarian and prosecutor should be a partnership.  Since the sanitarian is the one most familiar with and usually most interested in the case, he should be ready to prepare the case for trial.  At a minimum this requires gathering, organizing and preserving the facts.

    Before considering the law of evidence, the sanitarian needs to understand and plan for two other important factors: the elements of the offense, and the burden of proof.

Elements of the Offense

    Most violations of environmental health law are categorized by statute or ordinance as crimes.  Even though these crimes are designated as minor breaches of the law, misdemeanors, the criminal elements of an unlawful act and criminal intent must be shown.  The objective of a prosecution and usage of evidence is to establish the elements of the crime charged against the person.

    The unlawful act most commonly encountered by a sanitarian is the creation of an unhealthy condition which violates the public health code.  Stacking of garbage on a person's premises, keeping the temperature in a restaurant's refrigerator to high, and having sewage standing on the ground from a malfunctioning septic tank may all be unlawful actions.  Unlawful acts may also take the form of an omission or failure to act such as failure to have a food handler's permit.  The definition of what is unlawful is found in your codes.   Some codes may have very specific violations, while other codes provide for a broad of offenses.  The PHS Model Food Code state merely it is unlawful to violate any section of the Code.  Most evidence gathered by a sanitarian is directed toward showing that an unlawful act or omission occurred and that the defendant did it.

    Conscious wrongdoing or intent, even though a general requirement for commission of a serious crime, is usually not applicable to environmental health law violations.  The public health code usually imposes strict liability for compliance on a person.  This means the mere unlawful act or omission by a person constitutes guilt.  A few public health laws require criminal intent to be shown, and if you operate a program under one of these statutes you should be aware of the intent element because you will have to prove it.  Regardless of any requirement of criminal intent, if you are able to show it anyway, it makes your case stronger and may sway the judge on other issues, including sentencing.  It has been said that most judges are unaware of the importance of typical public health violations, but there is no doubt that a judge keenly understands the importance of respect for the law and legal responsibilities.  Persons who continually and flagrantly violate the law will probably be dealt with more quickly and severely than one who for the first time, accidently breached responsibility in the code.

Burden of Proof

    The burden of proof has two aspects: the responsibility for proving, and the amount of proof need.  In the typical environmental health case, the health department, called the plaintiff, has the responsibility of proving each element of the offense.  The defendant who is presumed innocent has to prove nothing.  If the sanitarian has evidence to prove each element of the offense, then the defendant must rebut or refute it.  The necessary vigor of the defendant's response depends upon the amount of proof the health agency presented.

    The typical environmental health case is a criminal prosecution, and the standard here is proof beyond a reasonable doubt.  Reasonable doubt is difficult to define because it is a feeling in the juror.  Phrased in the positive it means the juror was morally certain of the defendant's guilt.  The juror as a reasonable and prudent person familiar with the ordinary affairs of life would not hesitate and pause to convict the person charged with the crime.  The doubt might seem trivial as to focus on whether the inspector read a thermometer correctly, or be substantial by questioning whether the defendant was even involved in the offense.

    Some other burdens of proof, in decreasing order of intensity, which may be used depending on the types of trial, are: clear and convincing evidence, preponderance of the evidence, and substantial evidence.  Clear and convincing evidence is frequently required in equity suits in which the agency is seeking a court injunction.  Qualitatively the evidence may be less than moral certainty (beyond a reasonable doubt) but greater than a majority (mere preponderance).  This evidence has ben described as unequivocal, definite, and compelling, but maybe not completely conclusive.

    Preponderance of evidence is the usual burden in civil cases like liability, breach of contract, property rights, or civil penalty cases.  In order to sustain this burden, the plaintiff must show a reasonable probability that the facts are as he says they are.  The jury must believe the plaintiff's evidence is better than the defendant's.  You need merely enough evidence to win but need not shut the defendant out.

    The last level of burden of proof is substantial evidence.  This is the level of proof required to be shown by an agency to have a decision rendered against someone by an administrative board.  Substantial evidence is relevant evidence which "a reasonable mind might accept as adequate to support a conclusion".  Here, if you can convince the Board you are right even though the defendant may have even more and better evidence, you would win.  This standard is pretty much confined to quasi-judicial boards since they should have special technical knowledge of a subject that a generalist judge or jury would lack.  Because of the broad special knowledge and skills in the subject matter and less formal setting, some types of evidence may be admitted at an administrative hearing otherwise excluded at court.

    Even though these considerations are critical to winning a trial, they are for the most part beyond the control of the sanitarian.  Where the sanitarian plays a critical role is gathering and preserving evidence.
 

    Evidence is anything use to establish or prove a fact.  The first test for determining the admissability of evidence in court is whether the evidence is somehow material and relevant to the charge.  If a man is being charged with having a malfunctioning septic system which he refuses to correct, it probably is not relevant whether he beats his wife.  To a great extent this is a common sense limitation to focus the case and reduce trial time.  This test should not be a serious limitation on a health department since it usually has an explicit and rather narrow range of responsibilities.

    The second test is whether the evidence was lawfully obtained.  Evidence gathered in violation of a person's 4th Amendment right against unreasonable searches and seizures is inadmissible.  A sanitarian must be careful that the inspections and sampling comply with the 4th Amendment.

    Material and relevant evidence takes three basic forms: demonstrative evidence, documentary evidence, and testimony, including expert witnesses.   The following discussion is based on the general rules of evidence.  Since some states have specific rules which may differ, legal assistance should be sought.

Demonstrative Evidence

    Demonstrative evidence is physical items which appeal directly to the senses of the judge and jury with or without additional testimony.  This includes photographs, maps, diagrams, drawings, models, a person's or animal's body, objects, and articles, and other physical items.  The item may appeal to any of a person's senses: touch, taste, smell, hearing or sight.  This kind of evidence can have the greatest impact on the jury because it makes them feel like they were at the same place under the same conditions as the sanitarian.   Also, physical evidence is not affected by emotions, and cannot be impeached.   Therefore, it is usually more believable.

    Using your imagination, you can readily appreciate the emotional effect on the jury if they touch the uncleaned, 10-year-old cutting board which possibly caused a salmonella food poisoning, tasted a salty water sample where overpumping caused salt water intrusion, smelled and saw a water sample or dead fish from a small creek grossly contaminated with sewage, heard the intensity of a jack hammer in an occupational health case, or saw the infected hand of a cook.  Any object or article used as demonstrative evidence must be properly identified before the court and shown to be substantially the same condition as at the time in question.

    Samples, whether used themselves as evidence or processed by laboratory analysis, must have their source identified and be fairly representative of the whole.  Also, the object or sample which usually has passed through several hands before being brought to court, must have a documented chain of custody tracing the sample from its collection until its appearance at trial.   This chain is called authentication.  Authentication is required so fraudulent or tampered samples are not used.  The chain of custody is normally accounted for by tagging or marking the sample and permanent, formal receipt of log process.  Samples should be labeled and sealed.  The label should state the type of sample, date, place collected from, and the collector's name or initials.  A receipt should be given to the materials' owner or be acknowledged by the person in charge.  The samples must be secure at all times and must be traceable from origin until disposal.  If needed and possible, other information can be included on the tag.  Persons in the chain of custody may testify concerning their role and custody in the chain, the identity of the object or sample, and the condition of the item during the interval.

    The number, frequency, type location, and testing of samples depends on what is to be proven.  If you are trying to prove the violation of a water quality standard, you need a representative number of samples upstream of the discharge, at the point of discharge, and downstream of the discharge.  The type and testing of the samples will vary depending on whether you suspect bacteriological or chemical contamination, and the nature of each.

    It is best to follow the testing specified in your code or a recognized sampling or testing procedure.  Otherwise, you will need to prove the accuracy and reliability of the sample results.
 
    The old saying, "A picture is worth a thousand words" is true at trials.  Pictures (black and white or color), slides and movies make a deep impression on a jury.  The jury, in visualizing the situation, subconsciously may feel as if they were present at the location in the picture, and instinctively trusts pictures rather than relying on cloudy and unreliable memories.

    Photographs can be used as evidence in themselves but most commonly are used as a means to assist testimony by the sanitarian.  However, pictures must be verified and authenticated.  This requires someone to testify that the photograph is "a substantially true, accurate, and faithful representation or portrayal of the place, person, or subject it purports to represent or portray."  This means the size and spacing of objects in the picture must convey to the viewer the same impression that he would have had if he visited the scene.  A witness must also identify the person, places, or things in the photo.  The latter witness can either be the photographer or someone else who is thoroughly familiar with the location and the photograph.

    The time the photograph was taken is important to determine if the scene photographed has changed, and if the photograph represents the conditions at the time in question.  Because of this question of time it is usually important to have a record of who took the photograph, where the photograph was taken, and, if possible, what items are shown in the photograph.  Also, it is helpful to have the photographer show some landmark or identifying characteristic which is not subject to change.  This will make it easier to authenticate the photograph because small photographs without landmarks could be taken at any location thereby depicting any set of circumstances.  Sometimes the instant pictures are an advantage because they develop instantly and you know whether the picture is satisfactory or if you need more pictures.  Regardless of the camera, the photographer should be familiar with the capabilities and limitations of the photographic equipment.  Blow-up of pictures and showing of slides on a screen are usually admissible in court, and can be very helpful to demonstrate to the jury a more detailed description of what the situation looked like.  Black and white photographs are adequate but may not be as graphic for a fluorescent dye test.  Color slides have been effectively used in housing sanitation enforcement cases where gross unsanitary conditions existed.  A small picture, whether black and white or color, did not do justice to the actual conditions which existed in the houses.  However, a slide of the same condition, shown on a screen enlarging it to probably 4 ft. by 4 ft. made a dramatic impression on the jury.  If the need arises, aerial photographs can be used as evidence but usually require the assistance of an expert witness for interpretation.  In the final analysis, the admissability of photographs will depend on the ground work laid by the sanitarian, the relevancy and materiality to the case, and the disposition of the judge.

    Maps, diagrams, drawings, and models are also demonstrative evidence and are admissible in court.  This includes blueprints and plats.  All these items are usually used to help illustrate testimony such as sampling locations.   Therefore, they are admissible if shown to be reasonably accurate and correct and are of some value to the court in understanding the witness' testimony.   The diagram need not be to scale if the sanitarian can explain the location on the witness stand.  It is best though to note on the diagram any visible landmarks.  The map, diagram, and drawing can be prepared in the courtroom but more frequently are prepared outside the courtroom.  The degree of accuracy of the map, diagram, or drawing depends on the use to be made of the item.  If the item is to prove an exact boundary line, then the item must be exact; however, if it is merely to illustrate a general location, then reasonable accuracy is usually sufficient.  The verification of the details of the drawing is usually accomplished through the testimony of the witness using it.  The value of these items in a courtroom can be easily understood in comparing a courtroom to a classroom.  A mere lecture by a teacher is usually never quite as good as a lecture in conjunction with with audiovisual aids, maps, diagrams, and charts which allow the student to both see and hear the instruction.

Documentary Evidence

    Inspection reports, survey forms, lab results, permit and license applications, complaint forms, records of telephone calls, and correspondence are all considered documentary evidence and may be considered official records.   The general rule is "all records and reports prepared by public officials pursuant to a duty imposed by law required by the nature of their offices are admissible as proof of the fact stated therein so far as they are relevant and material to a particular inquiry, under an exception to the hearsay rule even though they are not verified or authenticated by the person who made the inquiry."  A sanitarian would certainly qualify as a public official and the records of the department are official public records.

    This rule has two qualifications.  First, the information in the official report must be based on the personal knowledge of the official who recorded it.  A food inspection report prepared by the sanitarian who conducted the inspection would be admissible, but the substance of a complaint recorded on an official complaint form would be excluded since the truth of the complaint was not within the personal knowledge of the sanitarian.  The complaint could still be valuable in court to show that a number of people called the office complaining about a particular condition.

    The second qualification is that the report or record is usually proved by producing a copy of it, certified by the official record custodian.  The certification is the authentication.  Otherwise, the author of the report must authenticate it.  For certification though, the records must be duly maintained by the department.  In some health departments there is no such thing as an "official record custodian" and the record system may be best described as "anarchy".  If records in the department are anywhere and everywhere, then they are probably inadequate for certification.  The department should have somebody appointed in charge of the records.  All records should be signed by the person generating the item and the person's title noted on it.  There should be a simple but recognized and systematic record keeping and filing system, possibly embodied in a filing and records manual.  The appointed custodian should make regular checks of the records to verify the conformity with the system.  The bottom line is that the custodian must certify the record, and if these minimal steps are not taken, the record could be useless in court.  If these requirements are met, then the public official who made the record does not have to testify.

    There are two other sides to documentary evidence.  One side is the quality of the document.  By quality I mean the value of the written content in the document.  A detailed, factual, explicit, written inspection report is much more valuable than a vague, conclusory report.  Statements such as "a large number of flies in the kitchen," "chlorine level of pool at 0.1 ppm", about 60 gallons of garbage," are descriptive and explanatory, compared to "unsanitary," "inadequate," "nuisance."  The latter terms from common public health codes do not explain anything if found in an inspection report.  Besides the facts observed during the inspection, inspection reports should note: (1) the reason for the inspection; (2) date, time, and location; (3) any measurements taken; (4) exact name and owner or person in charge; and, (5) names, addresses, and telephone numbers of persons who accompanied the sanitarian or persons interviewed.  Complaints should also contain the signature, address, and telephone number of the complainant.

    The second side is the quantity of the records.  When building a case, complete and accurate records of all communications could be essential.  Letters, phone calls, can conversations with regulated parties should be recorded.  If there is no formal system for recording these items, then a memo for the files should suffice.  This may seem a silly inconvenience, but besides acting as a partial work log, it also documents conversations and their content.  These conversations, which may seem insignificant at the time, could be used by the defendant in court against the sanitarian as impeachment, and the prosecutor needs to know about them.  On the other hand, the defendant could make some statements which, if recorded, might be later found to be incriminating and decide the case.

    Business records are not public records prepared by public officials, but they may be admissible in court.  They are admitted if it is a regular entry made in the regular course of business, on the personal knowledge of the recorder or of some employee reporting to him, entered at or near the time of the transaction, as a permanent record of original entry, and authenticated by the record custodian.  For example, a lifeguard regularly tests pool water for pH and chlorine, and immediately records the results on a permanent chart.   The chart is admissible if authenticated even if the lifeguard is no longer around to testify about the chart.  Well logs and percolation tests are similar.  However, occasional reports or notes by the lifeguard, well driller, and septic system installer, probably would not qualify.
 

    The most common form of evidence is the testimony of a witness.  A sanitarian can be a witness if he has observed and remembers something material and relevant to the case.  This most frequently happens when the sanitarian was the inspector who observed the code violation and brought the case court.

    The sanitarian as a witness is in court to tell the jury certain facts he knows on his own.  Usually the sanitarian reconstructs and describes a condition or activity he observed.  It is important to realize the role of the witness is to transfer information to the jury, and the sanitarian should try to phrase his testimony as much as possible to create positive mental images in the jury.  There is more though to being an effective witness than just conveying information.  The witness must be believable by the jury.  The lay jury will have to decide the truth, and the sanitarian as a witness must appear trustworthy to the jury.

    The information the sanitarian conveys to the jury is facts discovered by the sanitarian.  Facts are who, what, when, where, how, and why.  "Numerous grease spots on the kitchen floor of a restaurant during the February 1 inspection" is a fact to be given on the witness stand, along with the method of determining the nature of the substance.  "That the kitchen was unsanitary" is a conclusion for the jury to make but not the witness.  Another example is "the rotten egg odorous, black, thick liquid substance oozing from the ground above the sewage tile field trench and in which mosquitoes were breeding."   The jury could conclude that this was sewage.

    Since many times the outcome of the trial depends on whether the jury believes the sanitarian or the defendant, collaborating witnesses are helpful and should be should.  Complaining neighbors, concerned community groups, victims such as from food poisoning, employees, and others could be used to confirm the sanitarian's observations.  The decision by the jury is not usually made on the basis of the number of witnesses for each side but on the credibility of the witnesses.  However, some supporting witnesses could be decisive.

    The facts must have been acquired by the sanitarian's investigation.  Information given to the sanitarian but which was not independently confirmed is inadmissible as hearsay.  For example, a sanitarian who investigated a complaint concerning garbage and rodents could not testify at trial that a neighbor said he saw 10 rats next door, unless the sanitarian saw the 10 rats also.  Nor could a sanitarian testify that a victim of food poisoning said the egg custard tasted spoiled.  These are hearsay and are inadmissible.

    Assuming the sanitarian accurately saw a particular condition, the next step is to remember the observation and to explain it at trial.  This may seem insignificant, but sometimes trials do not occur until a year or more after an inspection.  How many remember the exact facts of an inspection conducted a year ago?  Six months ago?  Or even last week?  If the sanitarian does not completely recall the episode, all is not lost because he is usually allowed to refresh his memory.  The sanitarian's recollection of an inspection are usually best refreshed through review of the inspection form or report, lab reports, and photographs.  Even if the sanitarian after reading the inspection report does not remember the inspection but recognizes that he did the inspection, the report may still be introduced as evidence if the sanitarian has personal knowledge of the situation and he now testifies that the writing was accurately made by him at that time.  Both of these situations, refreshing of memory and past recollections recorded, emphasize the importance of preparing factual, detailed, exact inspection reports.  Such reports may be boring and time-consuming but they may be all you have to rely on at some later date.

    There are other "dos and don'ts" for a sanitarian appearing as a witness.  These will be briefly discussed.  These are merely suggestions intended to help relieve the anxiety of a sanitarian called as a witness.  A confident witness is a more believable witness, and your job is to tell the truth and to have the jury believe you.

1. Discuss the case in advance with and make all evidence available to the prosecutor.  Find out what your role will be and ask what kinds of questions may be asked of you.
2. Refresh your memory about the case and your testimony.  Review the items you will be testifying about so you will increase your confidence.  Come to the courtroom fully prepared.
3. Dress appropriately.  Professionals wear professional attire and look neat and clean.  Court is not a Hawaiian vacation nor a funeral, so dress conservatively but not morbid.
4. Act dignified and be inconspicuous in the courtroom.  You are not supposed to be the center of attention.  Even if the sanitarian is not on the witness stand, he is expected to act courteously.  Leave the prosecutor alone in the courtroom unless you have some absolutely urgent information for him.  For less than important information, see the prosecutor at recess or other more appropriate times.  While in the courtroom, the sanitarian is under the observation of the jury who may later decide the credibility of the sanitarian based on the way he acted during the trial.  Avoid conversations with the other party or their witnesses.  Your statements can be used against you or create the impression of harassing the opposition.
5. As a witness, be polite, calm, and attentive; sincerely answer only the question asked after you have thought about it; don't try to anticipate the question which will be asked; if you don't understand a question, ask for it to be explained; don't volunteer information and if you don't know the answer to a question say so; speak loudly and clearly so the jury can hear and understand you; talk normally and in non-technical language to the jury; simply state the facts you know and not your guesses, hunches, or speculations; if you feel you should explain an answer to a "yes or no" question, ask permission to explain your answer; don't loose your temper, try to be cute or witty, pretend to be an aloof intellectual, exaggerate the public health effects or significance of the problem, or joust with the opposition's attorney; ask permission to refer to your notes, reports, or memos to refresh your memory; in all matters be polite and respectful to the judge; be prepared to use simple visual aids like maps, drawings, etc., to explain your observations; and always be confident, honest, frank, informative,and concise.  Most importantly, be yourself.
 

    Your memory is important because it may be months between your inspection and the trial.  You may refresh your memory but probably will need something detailed and reliable to refresh it with.  Your complete inspection report, lab results and photographs probably will be your best and maybe only reliable source of information.  If your report was vague, ambiguous, haphazard, sloppy, or scant, your memory is on its own.

    Credibility is the likelihood the jury will believe what you say even in the face of contradictory evidence.  The attack on your credibility is called impeachment and is directed at prior inconsistent statements or actions, bias, prejudice, interest, motive, and reputation for truth and veracity.  Any one or all of these items may be used to impeach.  Sometimes the attack can be so direct and forceful as to be unnerving.  Other witnesses may be called to challenge your credibility.  Credibility is crucial because if it's your word against the defendant, and the jury doubts your testimony, you won't win.

Expert Testimony

    On some occasions the sanitarian may be asked to be an expert witness.  These occasions are when there are issues which require knowledge beyond that possessed by the average layman.  An expert witness differs from the ordinary witness, because whereas the typical witness is there to state mere facts,the expert witness is allowed to offer conclusions, draw cause-effect relations, and express opinions.  Even though we consider ourselves professionals and experts in environmental health matters, we may not qualify as expert witnesses in all matters.  An expert witness is a person who has specialized knowledge or skill in a matter in question which is likely to be helpful to the jury who are lay people unskilled in science.  The skill or knowledge could have been acquired by experience or education but must be specialized.  For example, in the prosecution of a restaurant owner for causing a food poisoning, an expert witness may be called to determine the cause of the epidemic since no one observed the epidemic starting.  The type of person who can best determine the probable cause of an epidemic from case histories, food samples, and sanitation reports is a physician-epidemiologist.  The best person to testify concerning percolation rates through differing soil types is a soil specialist.  Sanitarians do possess specialized knowledge which may be valuable, but usually are generalists and do not have the concentrated specialized knowledge needed for in-depth analysis.  However, a sanitarian who spent a number of years specializing in food protection or subsurface sewage disposal may, indeed, qualify as an expert witness.  To a certain extent though, the usage of a sanitarian as an expert witness is limited because many basic concepts of sanitation are readily understood by a jury, and an expert in these matters is unnecessary.  For instance, almost everyone knows milk left at room temperature spoils quickly and cockroaches and flied are unsanitary insects.

    If called as an expert witness, the same general concepts given for ordinary witnesses apply, except you are allowed to express an opinion if asked.   Be especially cautious about the extent of specialized knowledge you possess.   Be sure you really possess it and limit your testimony to just that subject.   Since sanitarians are usually generalists, it is easy to get sidetracked to other subjects in which you know something but in which you are not an expert.   Once you entered another area, you are open to direct attack on your credibility which may destroy everything you said.  An expert witness is not expected to know everything but should be a recognized authority knowledgeable in a particular subject.
 

    The sanitarian and the supervisor are the front line people in the process.  The  success of education, persuasion, or enforcement in achieving a quality environment and compliance with regulatory programs rests on their shoulders.  If prosecution is necessary to obtain compliance with your programs, the field sanitarian and supervisor have as much or more influence in the success of the suit as does the lawyer in the courtroom.  Even though the prosecution attorney must be in charge of the suit, the sanitarian should act as a partner with the prosecutor, and have the evidence gathered, organized, and preserved for trial.  Since we go to court infrequently, we go to win.
 
 
 

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SOURCE:  Sikora VA. Journal of Environmental Health, 1981, 43(4):195200.