How to Interview a Cooperative Witness

The seemingly routine interviews in the early stages of a case are more important, and not as easy, as they may seem.

The Ten Most Important Points

1. Be prepared.

Master the known facts of the case – review the case files and prior interviews – and decide what you need from the witness. Prepare an outline of the points you want to cover, but do not write out the questions. That will distract you from carefully listening to the witness’s answers and generating useful follow up questions. As the interview progresses, the answers will suggest the next questions.

2. Allow adequate time for the interview, to be conducted in an appropriate environment.

Be honest with the witness about how long the interview will take. Most interviews in complex cases take much longer than the witness anticipates. Conduct the interview in a professional environment; do not attempt to interview an important witness at lunch or in another social setting.

3. Bring the pertinent files with you and use them.

If the relevant files are voluminous, do the interview where the files are located. As appropriate, show the witness the relevant documents and let him or her review them before answering. Otherwise very important points will be missed or forgotten.

4. Organize the interview questions.

Go through the transactions in chronological order – as they occurred – or according to the documents, or in some other logical order, rather than just firing questions as they occur to you. If you are not organized there will be gaps in the questioning and you will inevitably forget to ask something important.

5. Ask short, simple, concise questions.

Avoid the long, unfocused, repetitive stream of consciousness questions that are typical of an inexperienced or unprepared investigator. Instead, train yourself to fully cover a particular topic by asking a series of short, simple questions, which is not easy to do. Short, clear questions make it easier for the witness to understand the question and for you to understand and evaluate the answer. And if the answers are not truthful, it will be easier to impeach the witness and rebut his claim that he misunderstood the question.

6. Listen intently – watch the witness.

Good interviewers rely more on their eyes and ears than their mouth in interviews. If feasible, have a second investigator attend and take notes so you can concentrate on the witness. Look at the witness (not down at your notes) as he or she answers and think about the answer – is it responsive, complete, plausible? – before asking the next question.  There is no need to rush. And don’t interrupt the witnesses’ answer unless he or she plainly does not understand the question.

7. Insist on complete, responsive answers.

As noted above, listen carefully and think about the answer before asking the next question – did the witness really answer the question? Often even well-intentioned witnesses do not – keep asking until you get a proper answer.

8. Press for detail.

Follow the journalistic “W-W-W-W-H” format (Who, what, where, when and how.) Always get the dates of key events, all the persons present at important meetings, what was actually said (as best the witness can recall, rather than just a summary of the statements) by whom, whether any record of the meetings, exist, and so on. Do not be afraid to ask the big or sensitive questions directly – ask politely, but do not beat around the bush for fear of embarrassing or upsetting the witness.

9. How does the witness know?

Ask, politely, how the witness became aware of the information he or she is relating. This will reveal possible unreliable hearsay – uncorroborated information from a third party – and allow you to evaluate the reliability of the information.

Hearsay information is useful and acceptable during an investigation to generate leads, and can lead to important evidence and witnesses. Eventually, however, investigators should try to obtain information from witnesses with direct knowledge of the facts. Direct knowledge means that the witness participated in the event, or observed it directly, or heard about it from the subject. The latter is known as an “admission,” is not hearsay, and often is the best evidence of knowledge and intent.

10. Promptly prepare a memo.

Have the witness review and correct the memo if necessary, and to sign it if circumstances suggest he or she might later recant. Delays in preparing the memo can be used to impeach its credibility. Be consistent in your practice of keeping or discarding notes. If your memos do not include everything in your notes, keep them.

The above may not be necessary if the interview is recorded, although a summary memo of the most pertinent points will be useful if the interview is a lengthy one.

Most importantly, remember that even honest, disinterested witnesses can be concerned about retaliation and the personal and business consequences of cooperation. Their decision whether to cooperate, and if so, to what extent, often depends on their assessment of the professionalism, experience and trustworthiness of the interviewer. Present yourself accordingly, in appearance, preparation and poise.