M. Lajoie, CLI, CCDI, CII
witnesses, assessing their credibility, presentation, and impression,
and taking their statements is an extremely important function of the
criminal defense investigator and should be accomplished as soon as
possible after review of all file and discovery materials. Most of the
defense investigator's time will be consumed by this phase of any
investigation, which, arguably, is the most important phase.
Preparation is the key to a successful witness interview and
statement, so make it a point to adequately prepare prior to the
with any knowledge of the incident, the defendant, and the victim(s)
should be considered possible witnesses, including police personnel who
may have responded to the scene and conducted the investigation.
Medical personnel who responded to the scene and anyone who
subsequently rendered medical care to the victim(s) and the defendant
should also be considered possible witnesses.
Family members of the victim(s) and the defendant are also
potential witnesses; but remember, both families are usually upset and
emotional so be empathetic and polite, yet professional.
complete list of witnesses should be made containing all their personal
and statistical data, their role in the investigation and a brief
description of what they did, who they were with, and what they
allegedly observed (be sure to include time lines).
This witness sheet should be supplemented and updated as the
investigation progresses. The
list will aid the defense investigator when conducting the
investigation, providing updates to the attorney-client, and preparing
for trial. A witness evaluation sheet should be prepared for each and every
witness which provides detailed statistical information; social,
educational, employment, criminal, medical, driving, and military
background information; personal appearance and credibility assessments;
and the gist of what they said to the defense investigator.
there were eyewitnesses to the incident, they are to be considered key
witnesses. Keep in mind
that not all eyewitnesses may have been interviewed and/or statementized
by the investigating authorities. If
this is the case, they must be identified and located, as well as other
witnesses, and interviewed. Identification
of witnesses can be determined from information contained in the
discovery materials, news media accounts, from reporters notes, through
scene area canvasses, by surveillance at or near the scene at roughly
the same time of day the incident occurred, and through interviews with
witnesses that have already been identified.
defense investigator should have a definite systematic approach and
theory to interviewing any witness, especially eyewitnesses, having
knowledge about the incident and have provided statements to the police.
The most popular theory and rule of thumb is not to interview/statementize
a witness that has provided a statement to the police until their police
statement(s) has been obtained, reviewed, compared with other
statements, highlighted and outlined for inconsistencies, and the
observations of the witness contained within the statement have been
analyzed with information extracted from the discovery materials, scene
investigation, and physical evidence gathered.
Do everything necessary to follow the rule, but in some cases it
will not be practical or expedient to do so.
In those cases, discuss the matter with defense counsel before
any contact is made. Be
sure to remember that the defense investigator must always keep in mind
the legal elements of the charges and the conditions that must be met by
the prosecution in order to satisfy the elements when conducting file
reviews prior to interviewing witnesses.
assume that the information contained within an existing witness
statement taken by police personnel is totally accurate, particularly if
the statement is not signed. Most
often, these statements have been reduced to typewritten, question and
answer or narrative form and are usually done by the police
investigator. They almost
never contain the exact words of the witness and are sometimes highly
suggestive. Audio recorded statements of witnesses by police is not
standard practice, but don't rule it out; if they do exist, get copies
of the tapes themselves and have them transcribed, if necessary, after
listening to the statement. It
has been the experience of many criminal defense investigators that
witnesses seldom read the entire police authored witness statement, if
at all, that they are requested to sign after it has been produced.
Even though the statement might indicate that the witness read
the statement and it is true and correct, don't assume they read it.
Witnesses, especially eyewitnesses, are oftentimes very tired and
emotionally and physically drained from the sequence of events they have
experienced and can't wait to leave the police station where witness
statements are usually taken.
The point is to always be aware of these potential problems in
police authored witness statements and to question the witness with
regard to the accuracy of the original statement as to whether or not it
is completely true, half true, or not at all true; or is it the author's
own statement of what they wanted
the witness to say? Stay
alert to this because a potentially damaging statement may be ruled to
be spoiled and therefore unusable for impeachment purposes for any one
of the above reasons.
the defense investigator is prepared to meet and interview the witness,
serious consideration should be given as to the venue.
It is almost always better for the witness to be interviewed out
of his or her own environment and surroundings.
The criminal scene is the best location to conduct the interview
if it is available, accessible, and provides an environment free from
any major distractions. But
many times it is not. If
the scene is not a likely location to conduct the interview, make every
attempt to bring the witness into the defense investigatorsí or a
neutral environment. If the
witness is reluctant to provide an interview at any other location other
than their home or workplace, by all means assent to their request.
Don't do anything that will agitate the witness and thereby
decrease the odds of establishing a friendly rapport.
In fact, when initial contact has been made with the witness, the
defense investigator should be friendly yet professional and show a
sincere interest in the witness and the witnessís family, house,
occupation and employer, hobbies, etc..... Additionally, provide the
witness with full identification and a business card.
all witnesses with respect no matter what the circumstance; don't talk
down to them; educate them
the situation within reasonable bounds, disclosing as little information
as possible; and above all, do
not lie to them!
primary purpose of a witness interview is to determine if an individual
made pertinent observations of an incident or event and has relevant,
material, and useful information to provide.
The secondary purpose flows from the first and that is to obtain
a defense witness statement if and only if the witness
does have relevant, material, and useful information to provide;
information that will help bring into focus the true facts and
conditions of the incident, corroborates or seemingly corroborates the
defendant's version of the incident, and brings the defense team closer
or to a point where an effective defense strategy can be molded.
the witness interview, the defense investigator must address five
primary concerns and those are what the witness observed through the
five human senses: sight; hearing; smell; taste; touch.
Do not take the direct approach when initially interviewing the
witness. Use the indirect,
conversational method and let the witness talk freely about their
observations. They are much
more likely to provide information when they are being treated friendly
than if they think they are being interrogated. Listen
to what the witness has to say without interruption. If the witness stops talking before finishing the story for
no apparent reason, use filler encouragement and prompts like "
wow, I certainly appreciate you sharing this information with me, but
did the screaming end at that point- What happened next?".
The " what happened
next?" question is one of the most powerful open ended
questions an investigator can employ during the indirect interview to
prompt continued conversation of the witness.
Take very detailed notes on the content of the witnessís
observations if and only if the witness is not intimidated or agitated
by the note taking. It
might be a good idea to ask the witness if note taking would be a
times than not, the witness will allow it.
the initial conversation has concluded, the witness should be asked if
they mind answering some additional questions to clarify what the
witness said during the indirect interview. After permission is given, the defense investigator must
extract as much information about the sequence of events that led to the
incident and about the facts specific of the incident itself, keeping
the legal elements of the charges in mind. This is your golden
opportunity to direct the interview.
Some examples of the essential directed question categories that
should be asked about when a victim has been assaulted, injured, or
killed are as follows: where was the witness located and what were they
doing prior to the incident and with whom; alcohol and drug use; the
witnessís location at the time of the incident and the lighting
conditions prevalent; who else was there; the physical disparity between
the defendant and the victim; whether or not any threats or arguments
occurred and when; physical contact by either person and who initiated
the contact if it was made; the physical movements of all individuals
and the time it took to make the movements; aggressive behavior and
aggressive actions by anyone including the defendant and the victim(s);
a description of the scene with reference to possible escape routes,
location of structures, objects and other persons (photographs and diagrams may be used and the witness asked to
make notations or references on them for visual illustration);
descriptions of any weapons, if used, and the complete circumstances of
their use; the positions of the defendant and the victim(s) at all
times, especially at the time physical contact, if any, was made;
all attempts by anyone to avoid physical battle; all
conversations, especially any statements that were overheard at the
scene made by the defendant and the victim(s) that could potentially be
admissible evidence due to the exceptions in the hearsay evidence rule;
lighting and weather conditions; location of the witnesses at the scene
and obstructed views; all observations that have significance with
respect to conditions warranting the use of
force; the general
reputation and moral character of the defendant, the victim(s), and any
key witnesses within the community;
prior incidents, threats, assaults, criminal acts, and aggressive
or passive behavior of the defendant and the victim(s); and, of course,
the details and circumstances of how witness statements were taken by
police and whether or not they were reviewed, read, and signed by the
is important to realize that questions will be derived and should be
asked based upon the responses of the witness.
It is imperative that the defense investigator take detailed
notes and not rush the directed interview; it may take hours to complete
so be sure the witness is made aware of time requirements and is
agreeable to them. If it is
noted that the responses of the witness are inconsistent with their
statement given to police, question them about it in an inconspicuous
manner or, depending upon the established rapport with the witness, call
them on it and ask them to explain the change.
Above all, try to make the exchange as least adversarial as
possible. In other words,
make sure the interview is not an interrogation!
watch the nonverbal movements of the witness and notice changes in his
or her speech patterns throughout the interview. Uncomfortable nonverbal
communication and changing, irritating speech patterns usually means
itís time to move on, or that they are not being truthful, or that it
just may be time to end the interview!
Sometimes, nonverbal communication can make or break an
interview. Always be aware of it.
the interview, the defense investigator must evaluate the witness for
bias and/or prejudice, accuracy of recall, interest or lack of interest,
frankness or lack of frankness, and any sympathy and/or empathy towards
the defendant and/or the victim. The
investigator must assess the conduct, demeanor, attitude, character and
appearance of the witness in order to form an impression that will
ultimately determine if the witness is favorable or unfavorable to the
defense. Results of the
assessment should be noted in the Witness Evaluation Sheet.
upon the results of the interview, and the evaluation and impression of
the witness, the defense investigator may or may not decide to take a
formal signed, handwritten statement or recorded interview statement.
Whichever method is employed, be sure the statement includes all
personal, statistical, occupational and employment data, and, where the
witness is a police officer or an expert, include their qualifications
as such. The decision to take a statement should be based on whether
or not the witness is able to provide relevant, material, and useful
information and facts about the incident before, while, or after it
occurred. If so, take the
statement. If not, make
detailed notes and document the file as to such.
If the witness refuses to give any kind of interview and/or
statement for a variety of possible reasons, it should be duly noted and
the attorney-client should be informed.
If a suspected witness alleges to know nothing about the
incident, a negative statement, wherein the witness indicates he or she
did not witness the event and cannot provide any information about it,
should be attempted. If a
witness refuses to provide a statement, donít force the issue.
Explain to the witness the reasons why a statement is preferred,
how it may save time and aggravation in the long run, and, if
applicable, how the new statement will give the witness the opportunity
to correct inaccuracies or mistakes in any statement they may have
previously given to police or other investigators.
Nine times out of ten, youíll get the witness to agree to
provide a formal statement if you listen to and address his or her
concerns and apprehensions.
The defense investigator should always include in any witness
statement taken all facts, knowledge and information obtained during the
indirect and direct witness interview.
Repeat the strong, supportive factual observations of the
favorable witness, particularly those that support or satisfy the
defense strategy. Emphasize
the exaggerations of the unfavorable witness's observations so that, in
the end, the witness becomes totally void of credibility. (1)
All handwritten statements should be completely
reviewed, read, and, if necessary, corrected by the witness. The witness should initial every correction, sign every page,
and affix their signature and the date, time and location of where the
statement was taken at the end of the statement below a sentence
preferably written by the witness that they have read the entire
statement and testify that it is true and correct.
The statement should then be copied, indexed in the defense case
file index, and the copy should be sent to the attorney-client.
If the Recorded Interview (RI) statement is
employed by the defense investigator, it must be done in a strict direct
and formatted manner to include: introduction; time, location,
personís present during RI; permission to record; proper
identification of the witness; background information; facts of incident
and the witnessís observations; pre and post incident activities;
follow up questions; re-assertion of recording permission; true and
correct paragraph; and conclusion with ending time.
It is preferred by most defense investigators to use standard
micro cassette recorders with high quality tapes.
Tapes used to conduct the RI are EVIDENCE and must be treated as
such. They should be marked
and labeled for identification and kept in a safe location.
Transcription of the RI tape should always be accomplished, and
then reviewed by the investigator.
In some cases, the attorney-client will ask that the witness sign
the RI transcription. If
so, the investigator meets with the witness again (opportunity to
establish additional rapport) reviews the transcription with the
witness, and BOTH the
investigator and the witness initial each page and correction made.
BOTH the witness and
the investigator sign the statement with full and complete signature.
criminal defense investigator should not be intimidated by the interview
and statement taking process because its importance is too indigenous to
the success of the investigation and the assurance that justice
prevails. Remember to interview the witness rather than to interrogate.
As in every phase of the defense investigation, be mindful of the
legal elements of the charges, the defense strategy, and apply the facts
gathered though the comprehensive witness interview and statement
procedure to determine if conditions existed that will support the
theories of defense.
Anthony M. Golec, CLI,
Techniques of Legal Investigation,
(Illinois: Charles C. Thomas
Publisher, third edition, 1995), pp. 112-114.