A sub rosa investigation can provide evidence and verify information to support claims across numerous branches of law. However, such an investigation is only worth conducting as long as it is carried out in accordance with state laws and standards for the admissibility of evidence.
In this article, we look at what a sub rosa investigation is, when it could be useful, how it relates to surveillance investigations, and what some of the key considerations are for legality and admissibility.
- What is a Sub Rosa Investigation?
- Why Conduct a Sub Rosa Investigation?
- How is a Sub Rosa Investigation Conducted?
- Is a Sub Rosa Investigation Legal?
What is a Sub Rosa Investigation?
A sub rosa investigation is the process of working with a private investigator to gather information or evidence discreetly. The investigator gathers this information without the knowledge of the individual or organization under question. To do so, an investigation may consist of tactics including physical and/or digital surveillance, undercover operations, and the use of informants.
The investigation’s primary goal is generally to gather evidence that may support or refute claims in court. However, some sub rosa methodologies do not lend themselves to admissibility, which we’ll get into later.
Claimants and/or defendants may hire sub rosa investigators for use in criminal, corporate, civil, and family legal proceedings. The information gathered can take various forms, but covertly collected photo and video is most commonly associated with this type of investigation.
What Is an Example of Sub Rosa in Law?
One of the most common examples of sub rosa surveillance is its use to confirm or dispel suspicions of fraud. An insurance company may seek a third-party investigator to gather evidence that accurately assesses the claimant’s mobility with regard to their injury in the claim.
This is just one of many examples, and we’ll speak to some of the other common sub-rosa use cases later in this article.
What Is the Meaning of the Phrase “Sub Rosa?”
In ancient Greek mythology, the rose emerged as a symbol of secrecy. This is based on the myth that Aphrodite gave a rose to her son Eros, who – to ensure that Aphrodite’s affairs would remain hidden – gave the same rose to Harpocrates, the god of silence and secrets.
This association with secrecy, trust, and confidentiality continued into Ancient Roman symbolism. Romans used the rose in many contexts to denote the need for discretion. Over time, the Latin phrase “sub rosa” – meaning “under the rose” – emerged. If something was “under the rose” it was meant to be kept secret or unfold covertly.
Today, “sub rosa” is still used in several contexts, though perhaps not commonly. For instance, someone could plan a party sub rosa to ensure it stays a surprise. So in the case of a “sub rosa investigation,” it means the investigation is clandestine.
What Is Sub Rosa Surveillance?
Since surveillance is the predominant method of information gathering in a sub rosa investigation, the term “surveillance investigation” is used interchangeably.
There is a slight distinction between the two, primarily in the techniques they employ. While a surveillance investigation is solely focused on digital and physical surveillance, a sub rosa investigation may encompass other methods of obtaining evidence, including making contact undercover.
Why Conduct a Sub Rosa Investigation?
A sub rosa surveillance investigation has several uses spanning different types of litigation. Across all of these is the commonality that the investigation is conducted to obtain evidence on behalf of the client. The party behind the request can range from a private individual to corporate and even public organizations.
Why Are Sub Rosa Investigations Most Commonly Used?
Insurance fraud occurs on a massive scale across the United States. So much so, the Federal Bureau of Investigation reports that the total cost of insurance fraud, excluding health insurance, is $40 billion every year.
Meanwhile, an estimated 10% of all property-casualty claims are fraudulent due to staged accidents and other fallible or malicious reasons. To verify the accuracy and eligibility of a damage claim, an insurance company may seek a sub rosa investigation. An investigator could uncover how the damage actually occurred and whether it aligns with the original claim.
Workers’ Compensation Claims
Worker’s compensation fraud costs $30 billion in the United States every year. In California alone, it is estimated to cost between $1 and $3 billion annually. As part of a workers’ compensation claim, an employer is on the hook for expenses including pay and benefits for the period during which the employee is unable to work.
A sub rosa investigation can help verify the legitimacy of the claim such as the recuperation time needed, as well as the extent to which an injury may or may not have impacted the employee’s ability to work.
Personal Injury Claims
In a personal injury case, the defendant is directly accused of negligence leading to the claimant’s injury. They may seek various expenses, such as medical bills, as well as additional compensation for pain and suffering.
Unlike a medical bill, the quantification of pain and suffering is subjective, potentially leaving defendants on the line for a large sum or settlement. The defendant may use a sub rosa investigation to identify fake personal injury claims as exaggerated or even fraudulent.
For instance, an investigator could find photos on social media showing the claimant doing activities that would be difficult or even impossible with their claimed injury. This type of evidence can help support the case that the injury has been overstated.
Divorce & Child Custody Cases
In addition to the highly emotional nature of a divorce, there is also a lot at stake, ranging from child custody to financial assets. A party’s behavior, lifestyle, and parenting abilities will likely come into question throughout a case.
For example, is there evidence of infidelity? Investigators may conduct surveillance to document activities, such as infidelity, that could impact the court’s decision regarding child custody, visitation rights, or financial settlements.
How Are Sub Rosa Investigations Typically Conducted?
The clandestine nature of a sub rosa investigation calls for a modern and advanced toolkit of techniques and technologies, coupled with the right context from the case and client.
While surveillance is most often associated with a sub rosa investigation, an investigator may utilize other methods of information gathering. The techniques at an investigator’s disposal could include:
A surveillance investigation gathers information by discreetly monitoring the activities, movements, and interactions of a subject of interest — both on and offline. Physical surveillance will use tools such as cameras, drones, and tracking to get in view of the subject and gather photo or video evidence.
On the other hand, digital surveillance consists of monitoring activity and gathering evidence by using advanced online investigative methods.
Social Media & Online Monitoring
The information that a subject publishes online and relevant information that others publish online make up a vast wealth of information. A sub rosa investigator who is skilled in social media surveillance can find evidence, as well as use social media activity to gather context for more efficient physical surveillance.
Examination of Records & Documents
An investigator may examine public records, financial documents, contracts, or other relevant paperwork, especially in support of a sub rosa investigation for corporate litigation. The documents discovered through the course of the engagement can present potentially new evidence, as well as uncover information or discrepancies that support the client’s claims.
Tools & Technologies
The success of a modern-day sub rosa investigation largely hinges on the cutting-edge tools at an investigator’s disposal, as well as their proficiency in leveraging advanced digital technologies.
Some of the tools and techniques that may be used during an investigation include:
- Surveillance such as cameras, audio recording devices, drones, and binoculars
- Smaller, covert cameras that may be hidden in objects like pens, buttons, or glasses
- GPS tracking devices may be used, but the legality varies by state and situation
- Open-source intelligence tools (OSINT) are used to collect information from publicly available sources, social media platforms, online forums, and/or public databases.
- Encryption and data security tools to help keep any information collected confidential
What Are the Steps in a Sub Rosa Investigation?
1. Gather Context
Context is the key to success. A client or its legal team will approach a third-party investigator with the “foundation of doubt” that is driving the request. The investigator will request any existing information that is legal for them to view. All of this is used to map out objectives, including the type of evidence that will support the client’s position in legal proceedings.
2. Create a Plan
Based on the context gathered from the client, the investigator will do further research to outline an operational strategy that is in line with the law for their state of practice. This will include facets such as personnel, equipment, budget, methodology, and timeline.
3. Gather Intelligence
The investigator will start with preliminary intelligence gathering to understand the person of interest’s activities, routines, and schedule. This gives the investigator a better understanding of where, when, and what to look for — both on- and offline. An investigator will pull from the toolkit of surveillance techniques we listed earlier, using their preliminary information gathering to monitor and document activity that could present new or verifying evidence.
4. Collaborate with Counsel
With all of the information in hand, the investigator will put together a comprehensive summary of the findings, prioritizing the most relevant information and presenting it in a clear and organized manner. They will then collaborate with legal experts to assess the admissibility, ethicality, legality, and relevance of the evidence that is collected.
5. Testify If Needed
A private investigator may testify as an expert witness in court to support a case or claim as needed.
Tips for Working With an Investigator
Keep the following in mind to help set the investigation up for success:
- Come to the investigator with information that supports your suspicions and keep them abreast of any information that arises along the way.
- It is part of the investigator’s job to determine when it is no longer valuable to surveil someone because it won’t yield evidence. (This saves you money!)
- An investigator will not break the law for you, and if they are willing to, they are not a good candidate.
Are Sub Rosa Investigations Legal?
Surveillance must be conducted within the boundaries of the law and adhere to ethical guidelines. While a sub rosa investigation prioritizes secrecy, it does not justify illegal activities or the violation of individuals’ rights.
Which Investigative Practices of Note Are Illegal During a Sub Rosa?
A private investigator license is specific to the state, each of which has its own rules and regulations regarding appropriate conduct. For example, in the state of California, a private investigator cannot manipulate photo or video evidence.
Luckily, along with the prevalence of photo- and video-editing technologies, the authentication of these types of media evidence has become more rigorous and advanced. While a private investigator may be tempted or even encouraged to tamper with the original media to support a client’s narrative, this is grounds for license revocation and can cause significant issues for a client in court.
However, the practice of inadvertently manipulating digital metadata by not properly sending, receiving, or storing digital media is much more common than intentionally tampering with evidence to support a client’s narrative. Additionally, taking screenshots of social media posts can effectively lead to the same result, which is why forensic preservation is so important.
Sub Rosa Investigators You Can Trust
Bosco Legal Inc. has 30+ years of experience in surveillance investigations, led by a team of investigators and legal professionals at the forefront of the industry. Our advanced social media investigation capabilities give us an edge, as we leverage information found online to execute efficient surveillance offline. Additionally, our legal expertise allows us to navigate the information-gathering process in a way that ensures ethical operations and admissible evidence.