Witness Statement Strategies
By Julius Bombet, CLI, CFE, LCI
As professional investigators, our primary function is to gather facts. One of our primary forms of fact-gathering is the witness statement. Statements, of course, take many forms. Affidavits, handwritten statements by witnesses, statements written by investigators and signed by witnesses, and tape recorded statements are all widely used in the context of civil and criminal litigation. However, regardless of the form of the statement, statements have three primary purposes.
- SETTLEMENT -- to develop information and "investigate" a case in the classic sense for purposes of settlement;
- PRESERVATION -- to serve as a recorded recollection of a witness whose memory might fade legitimately with the passage of time; and
- IMPEACHMENT -- to document testimony and provide a reliable standard against which a potentially hostile witness might later be held with regard to testimony from the witness stand.
One of the most difficult situations presented to an investigator is that of dealing with an uncooperative or hostile witness who may be critical in terms of testimony to the outcome of a case. In this type of statement taking, the investigator must walk a thin line between the investigation role of statement taking and the documentary function it serves because if a statement cannot be potentially used in court, it is essentially of no value. Additionally, if a statement is used at all in court, the court will usually insist that the statement be read in its entirety, including those portions of the statement that may not necessarily be favorable to the investigator's client's position. The attorney cannot pick and choose parts of a statement to present in court. It is perhaps stating the obvious that a statement does no good if only part of it is helpful while another part of it is so potentially harmful to the case that the statement cannot be introduced. To cope with this problem, the trained and experienced investigator can orchestrate the taking of statements to a great extent and both "investigate" a case and simultaneously preserve the work product for use at trial later on.
I want to do the best job possible for my client. I realize that I don't have control over the wishes of others; however, my abilities as an interviewer do allow me to exercise some influence and control over the subject. Furthermore, I've always felt something was lacking when a client requested that I obtain a statement from a potential defendant or witness and after the initial interview the subject denied me a recorded or written statement. My technique of dealing with a hostile or marginally cooperative witness is a variation of the tape-recorded statement. I call it the "memo statement". The memo statement concept can fill a void when the subject refuses to give a written or recorded statement.
Now, after a subject declines to give me a recorded statement, I take out my recorder and inform the witness that it will be necessary for me to report to my client what he has told me. I begin to dictate a memo to my client in the subject's presence under the guise of avoiding misquoting him. I stress to the subject the importance of my reporting his observations as accurately as possible. The objective is to document the major points of the interview primarily to establish liability in a civil case or establish reasonable doubt in a criminal case. My memo is short and to the point and take takes the following form:
Bombet: This will be a memo to attorney John Doe from Julius Bombet dated October 10, 1990. The case name is Mike Jones vs. ABC, Inc. The subject interviewed is John Smith. On October 10, 1990, I traveled to the residence of Mr. John Smith in conjunction with the above-referenced matter. I conducted an interview with Mr. Smith; however, he expressed his desire not to give a recorded statement. In the interest of accurately reporting the information Mr. Smith has provided me, I am dictating this memo in his presence with his permission in the living room of his home; is that correct, Mr. Smith?
Smith: Yes, that's correct.
Bombet: Mr. Smith has indicated to me that on January 28, 1994, at approximately 2:30 p.m., he was stopped at the stop sign at the intersection of Louisiana Avenue and Mississippi Street in Denham Springs, Louisiana. He was traveling in a westerly direction on Mississippi Street when a vehicle driven by an unknown white female approximately 20 years of age traveling in an easterly direction on Mississippi Street went through the clearly visible stop sign without slowing down and struck the late model Cadillac being driven by an unknown white male approximately 35 years of age traveling in a northerly direction on Louisiana Avenue. Is my description of your observations correct, Mr. Smith?
Smith: Yes, that's correct."
Of course, this short example doesn't consider that I've left out several details that certainly would be desirable. My memo would not necessarily end here, but it could. I can continue to include other pertinent information, such as weather conditions, position of the sun, road conditions, the witness's position relative to the intersection, the quality of his vision, where he was going and for what reason, etc. depending on the demeanor of the witness.
I recommend that if the memo is going well at some point during the dictation, an intentional error be made so that the subject can point out that you've made an error and correct it for you on tape.
At the end of the memo statement, I usually say the following:
Bombet: This is Julius Bombet concluding my dictation concerning the above-referenced matter. Mr. John Smith has been present during the entire time that I dictated this memo. Is that correct, Mr. Smith?
Smith: Yes, that's correct.
Bombet: Mr. Smith, has everything I've said in this memo been true and correct to the best of your knowledge?
Smith: Yes, that's correct.
Bombet: And in those incidents where I've mistakenly said something that you did not agree with and you corrected it; is that correct?
Smith: Yes, that's correct.
Bombet: Mr. Smith, is there anything that you would like for me to add or change in this memo?
Bombet: What is your full and correct name?
Smith: John Henry Smith.
Bombet: This is Julius Bombet concluding my dictation concerning the above-referenced matter.
In some states, this method might not meet the legal requirements for consensual recording; however, in those cases, to possibly circumvent the exception, you might, at the end, ask the subject if he understood that his utterances also were recorded on the tape. I think it is up to your own ingenuity and imagination to modify this concept to fit your needs.
At least when I leave an interview now, I don't feel like I'm leaving empty handed if I am refused a recorded or handwritten statement. I believe this method works because most people want to be quoted accurately.
Whether the subject is a favorable witness or an unfavorable witness, certainly, this method more accurately documents what you've been told than would a simple memo dictated after you've left the interview.
I have not had the opportunity to use such an interview for impeachment purposes. However, the attorneys that I have furnished interviews of this type to believe that it would stand the appropriate legal test and be admitted as a consensual statement by the witness if the witness subsequently changed his testimony.
There are other considerations that we, as professional investigators, need to consider in interviewing potential witnesses and defendants. Here are some situations that require professionalism:
- Don't misrepresent yourself. In handling an interview dealing with a potentially hostile witness, the investigator may be inclined to adopt a fictitious name or even a false job title. It would be a rare adverse driver in an automobile collision case who would not give a statement if he was told that his own insurance company representative was requesting it. However, this type of tactic is potentially embarrassing for the investigator at trial who has to take the stand in order to provide a foundation for the very statement he took. Furthermore, revealing the false pretenses to a jury might even taint the effectiveness of a good statement. There are certain tactics that the experienced investigator can use in identifying himself to a potentially hostile witness that can help break the ice and at the same time fall short of the pitfalls that could be presented when the statement is used later on in court. An investigator may find some success in the technique of introducing himself as an investigator working on a "claim" or an "incident" involving a matter in question. The representation is entirely correct, and at the same time the witness is left to draw his own conclusions as to further identification of the investigator. If further identification is requested by the witness, it is incumbent upon the investigator to fully disclose his correct identity.
- Identify on tape the name of the witness. In a small percentage of cases, the witness may deny that it is he or she whose voice is being played back in court. Therefore, identification of the witness in a taped statement by name, address and even the witness's mother's maiden name is a technique that I employ to prevent embarrassment at a later date.
- Identify yourself by name on tape. In some states, the law requires the investigator to identify himself or herself in any statements taken. I always identify myself by name, although Louisiana statutes do not require that I do so.
- Don't lie in a tape recorded statement. It makes a poor presentation to a jury to document the falsity of a witness's in court statement by using a previously recorded statement when the investigator whose voice appears in the previously recorded statement demonstrates that the investigator is not beyond falsifying answers himself.
- Don't ramble. Avoid "uhs", "ahs" and rambling. Stick to a simple question and answer format. The investigator should constantly keep in mind that any tape recorded statement may ultimately be played back in its entirety in court.
- Don't use profanity or laugh. A witness may laugh, make racial slurs, or make some particularly inappropriate comment. You should resist all temptation to meet any such remarks with anything other than silence or another directed questions.
- Don't sympathize with a hostile witness or a potentially adverse party. As an adopted technique, many investigators will sympathize with a potentially hostile witness or potentially adverse party in a tape recorded statement. If the statement must be used at a later date in a court, a jury may not recognize that the investigator on tape was only utilizing a professional technique in order to bring out the testimony of the witness.
- Don't agree with a hostile witness. Stay away from comments such a "right" or "I see your point" in order to keep the conversation going. Such extraneous comments come back to haunt you or your client at a later date.
- Don't "gild the lily". When a witness is providing the investigator with exactly the type of information hoped for, the natural inclination is for the investigator to see how far the witness will go toward making the case even better. However, pushing a witness on to give an even better response than received may tend to destroy the credibility of the investigator as a "neutral" investigator and may even backfire if the witness senses excessive advocacy on the part of the investigator.
- Be careful with juvenile witnesses. Juvenile witnesses, particularly in connection with tape recorded statements, present a special problem. It is always preferable to have one of the juvenile's parents present and in some jurisdictions required by law. A juvenile statement taken in the presence of a parent will be extra credible. Secondly, a potentially hostile juvenile witness who may have given an adverse statement previously may sometimes reconsider when a parent is present.
- Form a plan. Take time to think about where a statement is going and what its intended purpose is before the statement is taken. The experienced investigator will form a plan with regard to a statement before the witness is ever approached and will have contingency plans with regard to mitigating possible problems which may come up in the course of a statement.
- Know the requisites of statement tender in your own jurisdiction. Most states do not require an investigator to tender an unsolicited copy of a statement taken from a witness to that person in order to preserve it for later use in court. Be sure you know and meet the legal requirements in your state.
I hope you will find useful some of the suggestions provided. Remember, the purpose of the statement is not only to determine the facts but to record what the interviewee knows in a formal document.
THE ART AND SCIENCE OF
AND STATEMENT TAKING LIBRARY