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Topic: What do you do when your specific loss is found
detector Administrator
posted 01-19-2009 06:58 PM
Hey Everybody,
Looking for some perspective.
Jewelry Store owner calls me and desires to conduct tests on two employees over a missing jewelry item. All fingers point to an inside job. Three days later, the missing jewelry item suddenly appears...in a location where they have already looked three times prior when ensuring that it wasn't just misplaced.
I realize it is pretty obvious there is no longer a specific loss, but the employer obviously STILL has a problem.
1. Is there any way that tests could still be run in this situation and not violate EPPA?
2. If the consensus answer to #1 is 'no'. Do you have any suggestions for this employer?
Thanks.
------------------ Ralph Hilliard PolygraphPlace Owner & Operator
posted 01-19-2009 07:05 PM
Ralph, A speciaifc loss did occur. The fact that it was returned, in my opinion does not change that. Whether a sepecific investigation has narrowed it down to those two employees is an issue that needs resolution. However, I'd send an email to tvpoly@aol.com and ask him that question. If anyone has their finger on the pulse when it comes ot EPPA, it's TV.
quote: the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, or an act of unlawful industrial espionage or sabotage;
The above is one of the exemptions. I'd say it's still an "ongoing investigation" and it did involve an economic loss notwithstanding its recovery. However, it might be all to easy to say it was never really missing - they just missed it (three times!), so there was no loss.
"Disappearing" and "reappearing" is probably an interesting fact pattern for a lawyer who has time for some legal research because that's really what you're asking for here (legal advice), but fear not since that won't stop us from offering our lay opinions. (And I've got plenty of those.)
posted 01-19-2009 09:53 PM
Last year I had the same thing happen but it wasn't jewlery. I declined to test because there was no economic loss. I swear I got that from one of TV's classes...but I could be wrong.
So Ralph, I believe your client has a problem with one of the employees but I wouldn't make it your problem.
If TV responds, I would really like to hear his opinion.
The exemption that would have applied, would have been the financial loss investigation exemption. Since it is now obvious that no financial loss occurred, no polygraph exemption would provide for testing.
In the past under circumstances that didn't allow for eppa testing, I have recommended a licensed private investigator be contacted to interview all the employees. Many times if the investigator has past law enforcement investigative experience, he/she knows how to break the guilty party. Most police departments will not get involved, especially if they learn that the missing property has been recovered. Some will, but its rare.
Also, unless the state has provisions for employee's rights (NC is a right to work state), the employer may make whatever changes he/she wants to with very little reason or legal justification. This would be predicated by employment law within the particular state.
No provision for polygraph testing under any circumstances as the facts are reported.
*******************************************
------------------ Ralph Hilliard PolygraphPlace Owner & Operator
quote: Since it is now obvious that no financial loss occurred
It's not obvious. A financial (economic) loss did occur if in fact the item was stolen. Just because it's back doesn't mean the loss never occurred. That would be like saying a theft didn't occur if the thief returned the item. (It's still a theft even if the person brought it back and even if the victim didn't know it was ever gone.)
Unless there is some case law or opinion he failed to cite, I'm not sure why legal reasoning would change for this situation.
Again, my fear would be that they couldn't prove it was ever missing, and thus, no proven loss.
posted 01-23-2009 01:03 AM
Answer: Zombies did it – probably Zombie cats.
I'll explain.
A quantum mechanic view of this tells us that everything that exists (particles, jewelry, cats, light photons etc.) can be represented as a mathematical wavefunction representing probability that it exists in a certain way or certain state (stolen or not stolen). There is always some probability that it is either. Quantum theory therefore holds that the missing jewelry exists in a superposition of all possible states – it is both missing and not missing. Stolen (returned) or not stolen. There is both a known loss and no-known loss. Another way to look at this, because there are only two possibilities, is that the jewelry is 50 percent missing and 50 percent not missing. According to quantum superposition theory, the superposition of all possible states is terminated by the act of observation or measurement, at which point the wavefunction possibilities collapse to a single state (missing or not).
While this will be troubling to some, there is experimental evidence that superpositions of state do occur at the subatomic level. One of the best known examples is that of light photons passing through two slits onto a photographic plate. With one slit, the light casts a single line onto the photographic plate. With two slits, two strips of light are expected. However, what actually happens with the two-slit experiment is that the entire photographic plate is covered in lines of light and dark strips – meaning that the individual photons are not passing through a single slit through two non-crossing trajectories, but somehow interfere with each other or themselves across the two trajectories. It was concluded that each photon simultaneously takes every possible trajectory through the slits onto the target/plate. Attempts to track the paths of individual photons have been observed to disrupt the trajectories, resulting in what would be intuitively expected – two strips of light. When the attempt to measure or track the photon trajectories is stopped, the photons again produce multiple lines of light and dark – the superposition of states is restored.
I know... light photos and subatomic particles are one thing, but jewelry is either missing/stolen or not, just as cats are either alive or dead.
Schrödinger, in a famous thought experiment, showed us the complications of generalizing subatomic theory to practical matters, and also showed that the superposition of states and wavefunction collapse seems to have something to do with observation and consciousness. Schrödinger proposed an experiment in which a cat is sealed in a box which also contains a vial of hydrocyanic acid controlled by a triggering mechanism that is dependent on the random activity of a radioactive substance. After some time the cat will eventually be killed, because the radioactive isotope will eventually release an atom that will trigger the release of the hydrocyanic acid. The cat all purposes will eventually be dead, though we do not know when that will occur. According to quantum theory, the cat is in a superposition of states, because we don't know, at this moment, whether the cat is dead yet. The cat's state is therefore a superposition all of possible states, meaning the cat is both alive and dead at the same/present time. According to quantum mechanics, the cat is 50 percent dead and 50 percent alive. The superposition of cat states is theoretically terminated when an observer opens' the box and looks, at which time the cat is either alive or dead. Just as with the missing jewelry, it is the act of observation, a conscious act, which causes the wavefunction of superpositions to collapse to a single state – alive or dead.
Now, as a practical matter cats cannot be both dead and alive at the same time, just as jewelry cannot be missing and not-missing at the same time. So, this interpretation of quantum theory presents some unanswered questions...
The answer, of course, is that the cat is some kind of Zombie cat – but even a Zombie cat would exist in a superposition of Zombie-cat states, until someone noticed they are supposed to be dead but are not... at which point there would occur a quantum waveform collapse of the superposition of Zombie-cat states. The problem is that neither Shrodinger nor Einstein nor any other quantum theorist has attempted to describe the collapsed state of a Zombie-cat.
The mystery remains therefore unsolved...
niters,
r
------------------ "Gentlemen, you can't fight in here. This is the war room." --(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)
The only obvious fact regarding these circumstances is that the item (appears)to have been stolen. It appears a theft did occur given the circumstances.
I think we would all agree even when a stolen item is returned, the fact remains and can't be changed that it was stolen.
You are arguing theft when this issue as it applies to EPPA is loss. I suspect if the jewelry was damaged before it was returned it might be argued a loss was sustained if a price reduction was required or the item couldn't be sold. If the jewelry is back in the business owners hands, undamaged, how can you possibly argue there is a loss to the business?
Why take an unnecessary chance with an EPPA violation?
Similar to Toneill's '72 homicide in which a "developed suspect" requested an attorney in '72. In '08 this person is described as "a person of interest" that LE is wanting to polygraph. Do you Mirandize or don't you? I Mirandize. Again, why take an unnecessary chance in losing what might be learned.
Toneill - have you had any feedback from the AG regarding your '72 homicide issue?
posted 01-23-2009 07:35 AM
The business suffered a loss for the three days the item was missing and unavailable for purchase. The item is back now but the business lost employee time and expense searching for the item. Likely someone borrowed the item to wear and returned it. If an employee "borrowed" money for gambling and three days later repaid from his winnings, would you still say no loss?
posted 01-23-2009 09:18 AM
Do I wish we could polygraph them? Sure I do. However, it is not an economic loss and I wouldn't want to end up in an EPPA violation/law suit. I would not polygraph the employees. However, like TV stated, Ralph could interview on the suspects. I am sure he would have a good idea who the culprit was by the responses of the employees and a thorough investigation.
This employer definately has a problem and I don't think it is zombie cats (Ray, I am still scrating my head over that one). Like I said before, I wouldn't make it my problem by polygraphing them.
posted 01-23-2009 04:10 PM
There was an economic loss. This is law school 101. I am a law school dropout, but if the exams had been this easy, I'd have stuck around as no study would have been required.
"Economic loss" is not defined in the Act. Instead, it gives examples. Theft and embezzlement are two of the examples. Did a theft or embezzlement occur? Yes. Theft is a common law offense. It means the trespassory taking and asportation of the personal property of another with the intent to steal it. (Since they were employees, larceny by bailee is probably the more appropriate offense, since the thief may well have legally possessed the jewelry at some point, but this isn't a law school exam, so I'm not doing all that work.)
Embezzlement is a statutory offense, which means its definition is different in different jurisdictions. It is, essentially, converting somebody else's property to your own. The length of the conversion is irrelevant. In Maine, we call them all "theft."
In any event, the theft was complete when the thief's hands carried the jewelry away (if only a half an inch under theft at common law!). That is, if the thief picked up something he had no business touching, and while he did so had the intent to take it for good, and then moved it a fraction of an inch, the theft was complete. If he got half way across the room and changed his mind and then put it back, a theft still occurred.
The company was a victim of some type of theft, and therefore they suffered an economic loss, if only temporarily. The fact that it was returned carries no weight unless there is some decision we don't know about that would tell us otherwise. (It's a good research topic for a lawyer since that's what they get paid to do.)
Think about your reasoning. If the company had an insurance policy with a zero deductible, some you would have to argue there was no loss. How crazy is that?
I wouldn't touch this because it's too easy for them to say there was no theft. Instead, they didn't look well enough. If there was a theft (and there probably was), then a loss occurred, which means that Ray is right.
That's the perspective of a layman with only enough training to be dangerous, but it would be nice to hear from a lawyer, but I'm not footing the bill.
posted 01-25-2009 11:15 AM
Regarding hearing back from our AG's office we just met with the Wis DOJ investigators (Cold Case) and briefed our four homicides. We didn't get into any investigative direction yet on that particular case but it was agreed by conversation only that (not in custody) no Miranda. But of course we are going to shoot it up to the AG atty's when we get to the issue of pressing on in the case.
Just my opinion regarding "Theft" or not on the EPPA issue. As long as the party deprived the owner of use...its a theft! Temporary or not...still deprived of use. Thats in our jury instructions for "Theft".
Polygraph Place Bulletin Board
posted 01-19-2009 06:58 PM
posted 01-19-2009 07:05 PM
