From what limited experience I have as an expert witness and as someone who
has dealt with the management of forensic collections, I'd say that some but
not all of the concern on this point is misplaced. There is a very real
difference between access to materials that are directly evidentiary and
access to materials that are used in support of a case statement. Be sure
you understand what is being asked of you. Develop some policies now.

Direct evidence is normally reposited at the museum and is not therefore the
property of the museum. It is governed by the rules of evidence in the given
case. In the case of, say, forensic entomology holdings, the legal owner is
normally someone like the county medical examiner. The museum provides
curatorial expertise, storage and security, and is well within its rights to
charge contractually for doing so. In return, the museum is obliged to
provide access only to the repositor--the county medical examiner in the
example given--not attorneys for either side, the judge, or anyone else
without the repositor's explicit permission. More and more museums are
finding value in this sort of function, but I found very few policies
governing such situations when I was preparing a policy a few years ago. In
this case, the museum would be obliged to make the material available to the
repositor and would just as equally be obliged to restrict all access to
anyone else. Ownership may or may not be assigned to the museum once the
material is no longer considered evidentiary (=the case is closed). That
depends on the local interpretation of the rules governing evidence. Access
may be restricted for some time even if ownership is assigned. In such a
case, the museum is still obliged to restrict access until that time has
elapsed.

Non-evidentiary museum materials used in researching a legal case are most
definitely the property of the museum, and the museum is within its rights
to set some restrictions as it would do for any use of its materials, to
assess whatever fees it would normally assess, and to require written
permission in advance for anything that might be destructive. If the museum
is concerned about the use of original materials in a court case that could
drag on for months or years, it may require that all materials be initially
examined on-site, not lent. Sensitive materials (human remains, materials
associated with an identifiable individual or family, fragile or rare
holdings, etc.) may need to be safeguarded with further provisos restricting
handling and photography in the initial research stages.

The museum is not obliged to surrender to high-pressure tactics by one
side's representatives if there is no warrant or subpoena. Remember: they're
not in charge of the case, only of putting together their side of it. Judges
do not look favorably on that kind of pressure being brought to bear on an
entity that is not a party to the issue. The museum is obliged to remain
fair and neutral, and is not required to put its holdings at risk in the
process of responding to a request for use. It's like any other on-site
research use, so stay friendly, but don't ask about details of the case or
express your preference for one side over the other. In some cases, it may
be best to require that sensitive materials be examined on-site only when
representatives of both sides are present. In other cases, that will not be
possible or desirable. You need an objective, qualified legal opinion and a
good collections policy. If you are served with a warrant or subpoena, you
DEFINITELY need a good, objective legal representative.

If original materials are subpoenaed or required in court as evidence, you
will probably need a special loan agreement specifying the loan term,
handling restrictions, restrictions on analytical/destructive testing, etc.
What seems to work for some situations is an agreement by which the museum
restricts all access to the materials for a given length of time, but
actually continues to keep them on-site except for days when the material is
required in the courtroom. It's the equivalent of tying yellow evidence tape
around the materials. There may BE yellow evidence (non-sticky) tape around
the materials. The down side is a legal bar to all accessibility, similar to
the forensic situation described above, for an indeterminate time. The up
side is that the material is stored and cared for at the museum, not in an
evidence locker.

Yes, the museum could be sued for providing access. The museum could be sued
for darn near anything, most of it trivial or nuisance-level stuff. Unless
there is clear evidence that one side sought but did not receive access
provided to the other side, though, it's not likely that such a suit would
prevail. I wouldn't let fear of being sued be the determining factor. The
question would be whether the museum acted fairly and impartially in
providing its materials for legal research, subject to its own policies for
safeguarding its holdings in the public trust.

If a museum staff person is called as an expert witness, it's important to
make sure that person understands that the role demands fair and accurate
reporting of knowledge, no matter which side has called him. It's also
important that everyone understand that fees are paid to compensate the
witness or his employer for time and expertise, not to purchase the opinion.
The witness should give the same report no matter which side has actually
called him. Could the museum be sued? The museum could be sued for darn
near....oh, sorry, I said that already. But it is unlikely that such a suit
would prevail unless there is clear evidence that the witness was strongly
biased and that the museum also reflects that bias to the extent that
information was misreported, or that holdings were withheld or altered.

Actually, I have found that maintaining an awareness of the potential legal
use of collections is no bad thing. In a time where everything about
non-profits in general and museums in particular is being questioned, it is
wonderful to be able to justify collections by pointing out their expanding
role in legal and criminal analysis. (The use of insects, to continue the
example, to put people in jail or keep them out of jail is a terrific way to
get into a discussion of the value of collections today and in the future.)
It's an immediate public benefit that everyone seems to understand, even
when the other rationales we all believe in fall on deaf ears. The short
version is: don't panic, don't cave in, get good legal advice, safeguard the
collections, stay friendly, stay neutral, and be glad that your holdings are
seen as being this important. And definitely document all such uses of your
holdings!

Cheers,

Sally Shelton
Collections Officer
National Museum of Natural History
Smithsonian Institution

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