A common complaint from insurer investigators is that the information flow in dealing with law enforcement often is woefully one-sided. That is, an SIU will submit a referral to a fraud bureau or package a case for a DA, and won’t hear anything back on the progress of the case.
Some law enforcement agencies have strict policies about releasing any information concerning investigative and prosecutorial efforts. Others have loosened policies over the years as relations and trust between insurers and law enforcement have grown. Still, it’s a frustrating process for many SIUs to be left out in the cold while law enforcement investigate and prosecute their cases.
A meeting with fraud prosecutors in California this week helped shed some light on why many in law enforcement feel they must remain tight-lipped in dealing with insurers. In many cases that go to trial, insurer investigators are called to testify about evidence they’ve gathered. In the eyes of the law, the investigator is an independent witness. Under cross-examination by defense attorneys, if it’s found that there was a high-level of collaboration between prosecutor and investigator, the perceived independence of the witness diminishes. The status of the witness shifts from independent to adversarial. In the words of one prosecutor, the investigator then becomes a “contaminated” witness and the value of the testimony in the eyes of the jury is diminished greatly.
Prosecutors are sensitive to defense strategies that paint big government teaming up with big business to go after the little guy. They fear a free-flow of information will give defense attorneys an edge with juries that are already less than sympathetic in seeing insurers as victims.
So, for many prosecutors, maintaining an arms-length relationship with insurer investigators is crucial.
There also are other problems with sharing information with insurers. One DA recently closed down an undercover operation involving a workers comp case because it was learned that an insurance investigator failed to keep the operation confidential. Fearing the case was compromised and the safety of the undercover officer jeopardized, the DA felt he had no choice but to abandon the operation and the investigation, which he deemed “a very good case.”
And then there is the case of an insurer investigator a few years ago who used information from meetings with DA investigators to attempt to extort money from a fraud suspect. Granted, that’s an extreme example, but you can understand why prosecutors and others in law enforcement are apprehensive about sharing information.
We invite your opinions and experiences on this issue.