WITNESS INTERVIEWS:
The Tried and True Elizabeth Elliot
Board Certified Criminal Law Specialist
A witness interview is like a funnel. The more open ended the questions, the greater the opportunity to catch information the witness may volunteer. Interrogation is for the police; cross-examination is for attorneys; the legal assistant's job is to gather information. During the course of the interview the focus will become more specific, but do not begin with a predetermined list of questions that controls the flow of the conversation.
After you have read the case file, learn what you need to discover specifically and if there are any topics to avoid. Jot down maybe five questions and have a bare bones outline of the subject matter. Then make contact quickly. In a mobile society witnesses can be lost in a day.
Immediately identify yourself as a legal assistant and name your attorney. State clearly that you represent the defendant. Shun ploys such as, "I'm looking into the prosecution of John Smith," or "I'm working on the case against Mary Doe." The defense assistant may meet with resistance because he associates with the bad guys, but it is better to be above board and overcome a witness' reluctance initially, than to coax a witness balking on the stand because you misled them.
Be prepared for slams of the door. "I don't want to talk to you!" Plow ahead anyway. "I understand completely, that is why I have limited what I need from you to only five questions." Then begin with the first inquiry.
Find out as much data about the witness as possible. Sometimes you can entice a wavering witness by empathizing, "I have a teenager, too." "I was raised in the South, and I understand." "So, tell me, what happened the night of the arrest?"
Explain that your representation requires this investigation and you hope to resolve the case without the stress and expense of a trial. There can be no settlement, however, without speaking to witnesses who can perhaps avoid testifying in court by cooperating now.
The witness may be hesitant because of a bad past experience with police or an attorney. They do not want to be tricked. Tell them you appreciate their time and respect their insights and keep throwing out queries about the case.
There are pros and cons for speaking in person or over the phone. Generally, I follow the witness' preference and allow them to choose where to meet or whether to use the phone. Ask the witness if they would like to set up a specific time for a phone interview or conduct it right then.
Ideally, all witness encounters would be face to face to preview the witness before they take the stand. Some people can not play poker. They blush pink to their ears when unsure of their answer. Others speak poorly but have direct eye contact and a certainty in their attitude that would convince any juror of their honesty.
Phone interviews are more common than in-person appointments because of expediency. The moment you catch the witness on the line may be the only chance to probe them. Some people are more direct on the phone. Others may want to take stock of you before revealing anything. Check your effectiveness. I am almost six feet tall in heels and have a Minnie Mouse voice. When people meet me in person they say, "You are way bigger than your voice." Since my voice is disarming but my presence intimidating, I have to interpret the dynamics of the particular situation.
If you have the witness' address, drive by. In a gang-related crime we investigated, a witness' home was the only one in the neighborhood without gang markings. This visual clue underscored the witness' perspective on the case and would have been missed had the examination ended when we hung up the phone.
Keep a log of the date and time of each call, of every message left on an answering machine, of all business cards tacked on a front door and any letter sent. This substantiates the necessity for a court ordered deposition of an adverse witness or adds strength to your negotiation with the District Attorney if the State's crucial witness has disappeared.
Once you have made contact, take copious notes. Write the exact words used to frame a critical question. Place in quotation marks quirky words or unexpected comments made by the witness. Confirm the reply to a crucial question by repeating it and reflect in your notes that you clarified the statement. Date and time the duration of the interview and state whether it was by phone or in person. Transcribe your notes at once into narrative and get it to your attorney. For complete clarity, substitute pronouns. Although awkward, "Smith said that Smith handed the gun to Jones and then Jones ran away" is easier to decipher six months later at trial than "He handed him the gun and then he ran away." Who did what?
The substantive recordings from the interview should be kept as a separate, distinct rendition from your editorial observations. If you are called to testify to impeach a witness and use field notes to refresh your memory, the prosecution may inspect the document. It can be devastating to have certain impressions seen by the other side. With that in mind, the interview notes should recite what was asked and what was said. The "Attorney Work Product" notes in the file are your evaluations of the witness. Did he smell funny? Do you think he uses drugs? Was he defensive? Do you believe him? Were there any words that triggered emotions?
The number one rule of interviewing: Ask a question, then shut up. Allow the speaker to respond. Do not compound questions because you will overlook an answer. Listen to the reply.
Keep the story going. What do you remember about the police that night? What else did you notice? Then what happened? Do you know anyone else that may have knowledge about the case? Follow up on leads.
Cross examination is a factor to consider. Ask the adamantly sure witness why he is so certain. One onlooker was asked, "Did the woman leave the deck of the boat at any time?" "Absolutely not, never, not for an instant." "How are you sure?" He answered, "I never took my eyes off her." In fact, the woman had gone below deck and called 911 on three separate occasions. He broke down on the stand when confronted with the 911 tapes. He had locked himself in tight in the interview.
Interview every witness. In a DWI case, I had visited with our client, the driver, as well as the front seat passenger and one back seat rider. Everyone had the same recollection of the incident. I did not talk to the remaining back seat passenger because she was the mother-in-law of our client, and I figured she saw what everyone else did. At trial, her discrepant story was believed over the other three witnesses. I had no interview with which to impeach her. My attorney had no prior knowledge that her story would diverge from the others, so we were not prepared.
In a criminally negligent homicide case in which we came on board after a lot of time had passed between the alleged event and the upcoming trial date, each witness was asked, "What have you not told me that is still preying on your mind, even though you think it's minor." Without exception they mentioned the same, small puzzling fact that didn't quite fit into our client's story. We had to delve farther into that issue, otherwise the jury would be wondering about it, too.
A word about minors: Contact the parents of a juvenile for permission to speak to their child and allow the parents to be present or on an extension phone during the conversation. Treat juvenile witnesses with respect. This may be their first encounter with the law; there is an opportunity to teach them about justice and fairness.
Leave the lines of communication open. Tell the witness your attorney may think of a question you overlooked or an area that needs clarification. Assure the witness that if contacted again, the follow up will be brief. Provide your phone number in case the witness remembers anything else. Give the witness an opportunity to check your notes and initial the document if accurate.
To tape or not to tape? Read and discuss with your attorney the November 1996 Texas Bar Journal article, "Tape Recording of Conversations: Ethics, Legality and Admissibility," to ensure you have clear instructions from your boss.
There have been times in our law practice when we handed over our interview notes to the prosecution and encouraged them to call the witnesses and look into the matter quickly, rather than waiting for trial. Those cases were dismissed, the clients were spared anxiety, and our reputation for doing thorough groundwork was enhanced. Incorporate witness interviews as a part of your case preparation. You will learn to think on your feet as well as experience the excitement of having the case unfold right before your eyes and ears.
Elizabeth Elliot is a legal assistant for David A Sheppard, a Board Certified Criminal Law Specialist. Interviewing is a skill she developed from her early days with the New Mexico State University Police Science Department to her stint with a chain of newspapers and during her seven-and-a-half years in criminal defense practice.
TEXAS PARALEGAL JOURNAL
Winter 1996
©1996 Legal Assistants Division, State Bar of Texas