At the end of his investigations, the private investigator writes an investigation report which comes to close his work. This written report, given to the client or his lawyer, may be purely informational and for strategic purposes, or may be intended to be produced in court.
Nature of a private investigator investigation report
The purpose of the investigation report will depend on the form it takes. If the report is intended to be produced in court, it must be precise and detailed, to prove to the magistrate that the investigation is serious and objective, that is to say without modification or interpretation.
This detective report is a decisive and strategic lever for defending its interests in court. However, in order to be able to be debated before a court, it must respect certain rules, both in substance and in form.
Thus, the detective author of the report, or the officer of the agency that employs him, must be identifiable, and duly authorized to engage in private research activity.
Admissibility in court of investigative report of a private detective
Even if it is not established contradictorily, the Court of Cassation very early consecrated the admissibility of the investigation report in court, in a judgment dating from 1962 by approving a Court of Appeal having pronounced a divorce in based on a spinning report (Cass, 2nd Civ, November 7, 1962, No. 1020, Brunet v. Garnier, the Torino judgment) :
“Criticizes the judgment to have pronounced the divorce, to the wrongs of lady x …, relying only on the depositions of detectives, appointees by her husband, without answering the conclusions of lady X “
“The judgment is noted, both for its own reasons and by those it adopts, that lady x … had not produced any element contradicting the specific facts related by the people in charge of its shadowing, whose statements were imprinted no animosity; “
In the name of the freedom of evidence’s principle, the private detective’s investigative report is thus considered in the same way as any other means of proof, and its assessment is left to the magistrate who will be in charge of examining it. (Article 1382 of the Civil Code, formerly 1353).
In doing so, the judge must ensure the fairness of the evidence, and will have to dismiss the report if the elements obtained have been by fraudulent or illicit maneuvers.
Respect for privacy in a private investigator’s report
Violations of privacy are the most common pitfall for the admissibility of investigation reports. In accordance with Article 9 of the Civil Code and Article 8 of the ECHR, the production of evidence can not disproportionately affect respect for the private life of individuals, with regard to the objective pursued.
It should be remembered that, conversely, infringements of privacy are allowed if they are essential to the exercise of the law of evidence and proportionate to the aim pursued (Cass, 1st Civ, of 25 February 2016) :
“The right to evidence can only justify the production of elements that infringe upon privacy provided that such production is indispensable to the exercise of that right and that the infringement is proportionate to the aim pursued; “
Everything is thus a matter of proportionality, and it is up to the detective to define the exact legal framework of his intervention to precisely measure the extent of the proportionality of the evidence reported, which varies according to the nature of the case: civil, family, commercial, social insurance or insurance law.
In the work area, it should be emphasized that the report will only be admissible before the industrial tribunals, if the employee has been previously informed that supervisory measures may be implemented (Article L 1222-4 of the Code of job).
In conclusion, the investigation report’s admissibility is based on the professionalism of the private detective, who is responsible for remaining objective and perfectly in control of his intervention’s legal framework.