The Legal Investigator |
November 24, 2008 |
| In This Issue: |
The Witness Statement
by David B. Watts, CLI, CFE
Welcome!
In this, our second issue, we will discuss Witness Statements. Of all the many skills required of the professional investigator, statement taking is the most employed. Over the past 30 years I have taken hundreds of signed statements, each from a witness who saw or heard something that might benefit my client's case. Yet the same challenge is ever present: How do I get it down on paper and signed? The art of persuasion...that's how! There's no doubt about it; a good investigator must, first, be a good salesman. Cold calling a witness and later walking out with a signed statement takes years of experience and is always satisfying. Involvement reluctance, however, is universal and often means an uphill push for the statement taker. The witness knows that cooperation results in an imposition on his time and will likely subject him to public scrutiny in a court room. No one wants that. Yet, somehow we have to convince this witness to come to terms with the fact that the case isn't going away and, ultimately, his cooperation is unavoidable. A gentle, but firm approach ususally works.
As you read on, you will see that there is more to statement taking than meets the eye. To understand the nature of statements is to understand the nature of human behavior. It is an integral component in our justice system, as well. These are my own thoughts on the subject of statement taking, based on a lifetime of many trials (...and errors!).
As always, I welcome your comments!
Respectfully,
David B. Watts, CLI, CFE
ALLIED BUSINESS SOLUTIONS, solely owned d/b/a of
Interprobe Affiliates, Inc. a Florida Corporation
(Our twentieth year serving our clients in Soutwest Florida!)
FL Lic. No. A89-00394
P.S. HAPPY THANKSGIVING!
The Witness Statement
It plays out in court rooms everywhere:
When her name is called, she rises and walks through the gate to the front of the court room. Her hand on the bible, she says, "I do," then takes the witness stand. Thus begins her testimony.
..................
Yet, this is not the real beginning of her testimony. The journey began a couple of years before, when she was interviewed and sat for a signed statement. That statement became her committment to testify,... a kind of "downpayment" on future testimony. It also preserved her recollection of the facts, locking her into specific observations. Her statement's content encouraged one side and caused dismay on the other. That is what statement's do!
True...a statement has its limitations. It cannot be cross-examined. New evidence may appear as the case progresses that, if known earlier, would have changed its direction. Nevertheless, during the early phase, the statement lurks in the file exerting its influence on all parties to the action. Then the witness is deposed and the statement loses its preeminence. Statements don't show up in trials that much, except to impeach witness testimony; so its main contribution is made early in the litigation process. This is also when witness statements play a large part in the decision to go forward with an action, mount an early defense, or to facilitate early settlements and negotiated pleas
FOUR ELEMENTS OF A STATEMENT
Introduction
The statement opens with identying the witness, as well as the statement taker. It sets forth the current date, time and place with expressed witness permission. Along with setting the stage, this data is helpful when the witness needs to be located later on.
Witness Recollection
The witness provides a narrative version of her recollection, which sets forth the essence of her value to the case. After the witness explains herself in her own words, the statement taker can backtrack and ask for clarification where necessary. Estimations, such as distance, size, duration, etc. should be made clear via comparisons. Witness competence should be included. If the witness wears glasses, her ability to see should be explored and explained. If the witness is a child or mentally challenged, the statement should not reach further than obvious witness capacity. Finally, the witness taker should always ask if anyone made any spontaneous utterances at the scene. They just might be admissible and contribute to a successful outcome.
Emphasis
Once the statement has reached the stage where the relevant observations of the witness have been made; those points should be emphasized by going over them again. However repetitive this may seem, it leaves no doubt as to the thrust of this witness' anticipated testimony and strengthens the value of the statement by removing any ambiguities.
Closing
It is time to make a graceful exit. The witness should be advised that the statement is completed with an acknowledgment requested of the witness that it was voluntary and truthful. By asking if there is anything else the witness wishes to add, the statement taker risks including a careless few last words into the statement that may do more harm than good...not a good idea!
STATEMENT "HOW TO....."
It is the pre-statement interview that leads to a successful statement. Like the basement of a house, the interview is the foundation from which the statement grows. The statement taker gets to assess the witness' information and gauge his responses. The give and take in the interview sets the tone for the statement, as well as working out wording to best express the witness' contribution to the case.
Once the transition is made from interview to statement, both the witness and the statement taker should now be prepared to get it down on paper with a smooth and comfortable flow.
While the recorded statement is better than narrative statement; some investigators still prefer the latter. We believe that having a recorded statement in the witness' own words is better. It reveals inflection and shows strength of conviction adding to credibility; as well as cutting off suggestions that we twisted the witness' words. Of course, the recording is transcribed for the witness' signature; but we also obtain a signature at the end of the recording session wherein the witness acknowledges that he heard the playback and it is accurate. Should the witness have second thoughts and decide not to sign the transcription, we have the original recording and his signed certification!
Finally, the witness signs and dates all pages, changing and initialling any typos or errors along the way, and the statement is notarized.
..................
When your case requires witness interviews and statements, we can help. Been there...done that!