LEGAL ISSUES IN THE RECORDED WITNESS STATEMENT


LEGAL ISSUES IN TAKING TAPE RECORDED WITNESS STATEMENTS By Ralph Thomas
STATEMENT PREFERENCES


A fellow member on the private-eye mailing list recently posted a message concerning the right way to open a recorded witness statement and what preferences should be used. This was in respect to his lawyer client pointing these things out as problems with the recorded statement:

My lawyer client felt that the problem I had with my preface was.......

A. That I did NOT offer the witness an opportunity to provide a written statement in lieu of an audio recording....on the recording itself.

B. That I did not record an advisory informing the witness that he was under no obligation to speak to me.



C. I did not TWICE seek the wit's specific consent to the statement.


When he first told me these things, I thought, like Julius thought, that something must have changed somewhere..... so I asked the other lawyer for his opinion. Like I reported in my orginal post... he did not see anything wrong with the way I was doing things. And once again, like Julius, I am still wondering if there has been a new decision..... or was my lawyer client just overly cautious.

Note that most insurance adjusters use this in their statement:


".......and I have your permission to tape record this statement?"

I would be the first to admit that it's kind'a splitting hairs on many of these issues. However, the law does address "consent" not just "knowledge of" and it could cause some problems down the road--here is why:

A good attorney for the other side could make a very stable motion for the evidence being inadmissible based on the fact that you never asked permission but only provided knowledge thereof and then site the laws that addresses the fact that you have to do two things to have a legal telephone tape recording:

A) Provide Knowledge that the conversation is being recorded.
B) Obtaining permission of the party to do so.

Without those two, a lawyer could simply claim that the recording was:

A) Illegally obtained and a violation of law.
B) Therefore not admissible

Let's break the rest of this down so you'll see from the side the attorney is looking at. They are always concerned with evidence challenges from the other side. When considered from that light, you'll see all kinds of stuff.

Another important element in the preference is to clearly ID both parties to the conversation. That is, you need to clearly ID:

A) The witness
B) Yourself

It's best to state full names and addresses.

Another important element that should be expressly stated in the recorded statement is:

DATE
TIME
LOCATION STATEMENT WAS TAKEN

Without these other elements built into the statement, council for the other side could claim things such as:

A) There is no proof this is this person--it was never stated.
B) The witness stated his name but there are thousands of John Smiths
(casting a reasonable doubt)
C) There is no indication nor proof in the statement as to when and where it
was taken--we will challenge that.

The next element is the fact that you need to make a statement stating that the witness is under no obligation to answer any questions and that a written, rather than recorded statement could be conducted. The reason these two elements could become important is as follows:

A) If you didn't tell the witness he was under no obligation, the witness might later state that you forced and pressured him into making the statement.

B) By letting the witness have the option of a written statement, you'll avoid any Best Evidence challenge that a written statement is better than a recorded statement or whatever and so on. Actually, if that's the case, I'd make a challenge that, under the best evidence rule, a 3-D audio and 3-D video digital recording would be the best evidence. :)

In review, we have EIGHT elements to the preference based on what your attorney told you.

I wouldn't think that the attorney was being "overly nit-picking, he was just being a very good attorney.

1) Consent
2) Expressed Permission
3) ID Of The Witness
4) ID Of Yourself
5) Expressed time and date
6) Expressed location of the interview
7) Expression statement of giving in on own free will
8) Choices for other methods of statement taking

Other than that, if an attorney still said that the recording was not admissible, I would want to know:

A) Why
B) Under what grounds
C) What cititation or case reference it's based on?


Yes- we need to find out if there is any new case law on this--DOES ANYONE KNOW OF ANY?



Ralph Thomas, Founder And Director
National Association Of Investigative Specialist, Inc.
http://www.pimall.com/nais

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