The Witness Statement |
| This article appeared in the November 2010 issue of Res Gestae, the Lee County Florida Bar Association monthly magazine. |
When her name is called, she rises and walks through the gate to the front of the courtroom. Her right hand raised, she says, “I do,” then takes the witness stand. Thus begins her testimony.
Yet, this is not the real beginning of that testimony. The journey to that witness stand began several years before, when she was interviewed and submitted to a statement of her recollection of the facts. That sworn statement became her commitment to testify as to those facts. One can say that the statement was a “down payment” on future anticipated testimony. Not only did the statement preserve her recollection of the facts; it likely encouraged one side of the matter and caused dismay on the other. If a statement has any relevance at all, that is what it should do!
True … a statement has its limitations. It cannot be cross-examined. New evidence may surface as the case progresses altering trial strategy and rendering the statement moot. Nevertheless, during the early stage, the statement lurks in the file exerting its influence on all parties to the action. It is in this start-up period when statements play a large part in the decision to go forward with an action, to mount an early defense or even to facilitate an early settlement or negotiated plea. State-ments often clarify issues, reinforce argument and bolster counsel’s theory of liability or culpability. As such, the sworn statement plays an important part in case management and is often a vital element on the way to attaining justice for the client.
Once the case moves along and the witness is deposed, the statement loses its pre-eminence. It is a rare occasion when statements are actually entered into evidence, except perhaps to impeach witness testimony.
All of the foregoing begs the question: How in the world do you get someone to give a sworn statement? Why would anyone want to get involved in somebody else’s troubles? The answer lies in the interview technique used by the investigator seeking the statement. The cooperative witness shouldn’t represent a problem, so let’s skip over the obvious.
Harder to convince is the reluctant witness. The experienced investigator works his way into the conversation casually eliciting key data in the pre-statement interview. The longer the witness is kept in conversation about the case, the more likely he will reveal what he knows. Once he discloses facts helpful to our case, he is involved … whether he likes it or not! This interview process will eventually lead up to the statement; however, at no time is the word “statement” used with the reluctant witness. I would rather use the words, “report” or “notes” to soften the formality of the moment, lest the witness balk at the “S-word.” The transition from interview phase to statement phase with the reluctant witness is the moment of truth. Hopefully, by this time, the investigator has evaluated the personality of the witness enough to predict just what approach would work best: to engender empathy, sympathy, civic duty or outrage. In other words, “What if it were you, wouldn‘t you want someone to come forward?” …and so on.
The experienced investigator senses when the moment arrives and, depending on the rapport he has built, the witness will either go along with it or pull back. If he does the latter, it is time to advise the witness that he would likely be called upon to testify in a more formal setting to give this evidence at a time when it was not convenient. “So why not cooperate here and now, while we are on the subject?
After all…you might not be called at all.” It usually works, but the reluctant witness is always a challenge.
I am often asked, “How do you put a witness statement together on the spur of the moment?” That part comes with lots of practice. There are just four elements to every statement: (1) Witness completely identified, (2) Facts to be disclosed, (3) Emphasis of those facts and (4) Closing. Bearing in mind the simplicity of that framework, all you have to do is fill in the relevant information. Above all, brevity is a virtue… get it down, then get out.
One of the more gratifying moments in a legal investigator’s career is getting that statement from someone who, just an hour before, was a perfect stranger. Now, that’s a challenge worth the effort!