Take that Statement

Are you writing what I want to hear or

Are you writing the true

Free Advice from my Friend Agata

You may be going to Court Like it or Not

Statements play a vital role in both the criminal and civil legal systems. By using written statements those involved in the judicial process can read what a witness would say if they were present and as such they play an integral part by acting as an information filter in the legal system.Inform them Why you are taking

The Statement and for what purpose

Two things

• Try to prove the person innocent• The second is you cant break the law to make

the law

Purpose gain vs. goalThe purpose of a victim personal statement is to; • a) provide a means by which a victim may make known their

legitimate interests, such as their wish to receive information about case progress; to express concerns about intimidation or the alleged offender being granted bail; their wish to seek compensation, or to request referral to Victim Support or other help agencies.

• b) give victims the chance to tell the criminal justice agencies and services dealing with their cases how the crimes have affected them -physically, emotionally, psychologically, financially, or in any other way.

• c) provide the criminal justice agencies with a ready source of information on how the particular crime has affected the victim, supplementing other sources of information available, for example detailing compensation, or the confidential information form,

True/Lies• You need to show whether the person

understands the difference between telling the truth and telling lies. This is too complicated for most people to answer directly so it tends to be broken down.

Ill miss my exam officer

Respect is given and earned• All witnesses should be treated with courtesy and every attempt should be made to

put witnesses at their ease. It is preferable to speak to witnesses in a private room so that there is a more relaxed environment. At the outset, you should explain to the witness that the primary aim of taking a statement from them is to find out what happened.

• Any statement should be written and signed in ink. Witness statements should be drafted so that they are concise and to the point. They should only deal with matters within the direct knowledge of the witness. As far as is possible, you should try to record the witness’ own words.

• You may find it helpful to take notes before beginning to write the statement. Once the statement has been completed you should offer to allow the witness to read it; otherwise you should read the statement over to the witness before it is signed. If there are any alterations on the statement, these should be initialled by the witness.

• When questioning the witness you should ask all relevant questions ie pursue all reasonable lines of enquiry, whether these point towards or away from the potential accused.

Type P( Pleasant) Type A ( ______)

• Types of Witnesses• For purposes of this article, an attorney is interested in obtaining

statements from percipient witnesses (aka eye witnesses). However, there are other types of witnesses, such as character witnesses, lay witnesses, and expert witnesses that will not be discussed in this article as those witnesses do not fundamentally fit the criteria of this article.

• Within the scope of percipient witnesses, there are “friendly” witnesses and “hostile” witnesses. A friendly witness is someone who is favorable to your side of the case and is a cooperative witness. In contrast, a hostile witness is someone who is against your side of the case and is adverse to your client’s interests..

Have a Heart not a conscienceEffect of the incident on the victima. What was the effect of the incident on the victim?b. Did the victim suffer any physical harm? If so, provide full detailsof when, where and what harm was suffered.c. Did the victim suffer any emotional or psychological harmincluding any distress? If so, provide full details of when, whereand what harm was suffered.d. Did the victim seek any medical or other treatment? If so, fromwhom? What was the nature and cost of the treatment?e. What ongoing treatment has been recommended?f. Does the victim still experience any physical, emotional orpsychological effects as a result of the incident?

All events cause people griefDepending on the level of trauma the witness has experienced, it may be moreappropriate to have a series of short interviews with the witness rather than onelong one. Monitor the witness’ demeanor during the interview and call a halt tothe interview or have a break if the witness is becoming too distressed.If you are having a series of interviews with the witness to complete the statement,plan what you need to cover with them before each meeting. Review the informationyou have already gained, identify any gaps or inconsistencies in their account andask them about these when you next meet.If there is a gap in time in the witness’ account, ask specific questions about whatoccurred and in what order. For example, if the witness says that they did notgo searching for their missing relative until four hours after the event, ask themto explain why this was and what was happening in the interim. If the witnessgave a different account of the events to the police from the one they give you,ask them about this. Sometimes asking a question in another way will resolveinconsistencies as the inconsistency may be the result of a misunderstanding. Ifgaps or inconsistencies still remain, try to explore the reasons for them with thewitness.

In addition the skills and competence required to obtain witness evidence varies according to the method used to obtain such evidence i.e. paper, on video or other approved recording media and the nature of the witness concerned i.e child, vulnerable or intimidated. As a consequence it is important to ensure that the person obtaining the evidence is trained to the correct level and is currently classified as being competent. This is both a personal and supervisory responsibility.

The Now is better than the latterThe passage of time often results in witnesses (including victims) forgetting crucial details regarding an incident. As a consequence statements should be obtained from key witnesses at the earliest opportunity. This ensures the evidential integrity and content of the statement. However consideration should always be taken of the individual circumstances of the witness, their vulnerability, their emotional state and the particular incident itself. As outlined above consideration also needs to be given as to whether evidence should be recorded on video or other approved media, rather than a written witness statement

Prepare a lot –a lot ahead of time don’t walk in blind

• Prepare a list of questions to cover with the witness before you meet with them. This will assist you to ensure that you cover all the matters you need to cover. It will also assist you to direct the witness towards providing you with the information that you need and to avoid discussing matters that may not be relevant for the preparation of their statement. Even if you do not have any background information and do not know what the witness might tell you, there are some basic questions that you will always need to ask and it will be useful to start with these

Do as much research before the incident statement

Be Prepared Before You Begin• The person taking the statement should know the specifics about any matter in which a statement

would be relevant. You should know the questions to be asked before the statement taking begins. Any time a statement is taken, it is wise to have audio recording equipment available to record the statement orally. The statement should also be transcribed by a certified court reporter if possible. Notes should also be taken by the one asking the questions. All documents to be discussed and identified should be available for review.

Establish Witness Credibility• Begin the statement by clearly identifying the person giving the statement and why she is important to

the issue investigated. Begin your questioning process by establishing the witness' residence, her occupation and her expertise to make a relevant statement on the issue. Proceed to get her address, her place of employment and any contacting phone numbers. You should establish why the statement giver may or may not have had an excellent opportunity to have viewed an incident at issue or have credibility as an expert on the subject.

Decide Which Format to Take• You cannot question a witness too thoroughly. Getting a correct statement may require questioning that

may seem redundant. You may choose to ask questions that require short, precise answers or you may choose to ask questions that require a long, paraphrased account by the statement giver. Many statement takers will use a combination of the two methods. It is not uncommon to ask a statement giver to give his statement in his own handwriting on the pertinent issues.

Do you KISS on the first date

• When you begin an interview, it is helpful to try to put the witness at ease as soon as possible. Be sure to avoid using legalese that will not be understood by the witness. In fact, following the KISS philosophy (“keep it simple, stupid”) applies to taking a witness statement. Try to remain impartial when taking a statement; you are simply gathering facts

Everyone including GrandmaThe witnessa. Their full name;b. Their date of birth;c. Their gender;d. Their address; ande. Their occupation.Factsa. When (on what date and at what time of day or night) did theincident take place?b. Where was the witness at that time? What was he or she doing?c. Who was with the witness at the time of the incident?Identify each person as best they can, e.g. give:• their name;• their date of birth;• their relationship with each person there, e.g. neighbor,brother, friend;• if they did not know them, any identifying features orunusual characteristics.d. What did the witness see?e. What did each person present say or do?f. What happened as a result of the incident?g. Was any damage caused or harm suffered?

Add after they babble• Add to your list of questions as you move through the interview to

ensure you do not miss anything. If there is anything you do not understand as the witness gives their account, ask them to explain it.

• Depending on the level of trauma the witness has experienced, it may be more appropriate to have a series of short interviews with the witness rather than one long one. Monitor the witness’ demeanour during the interview and call a halt to the interview or have a break if the witness is becoming too distressed.

• If you are having a series of interviews with the witness to complete the statement, plan what you need to cover with them before each meeting. Review the information you have already gained, identify any gaps or inconsistencies in their account and ask them about these when you next meet.

The Case of the missing suit cases• Add to your list of questions as you move through the interview to

ensure you do not miss anything. If there is anything you do not understand as the witness gives their account, ask them to explain it.

• Depending on the level of trauma the witness has experienced, it may be more appropriate to have a series of short interviews with the witness rather than one long one. Monitor the witness’ demeanour during the interview and call a halt to the interview or have a break if the witness is becoming too distressed.

• If you are having a series of interviews with the witness to complete the statement, plan what you need to cover with them before each meeting. Review the information you have already gained, identify any gaps or inconsistencies in their account and ask them about these when you next meet.

The law protect the bad person

• Statements under caution• There is a distinction evidentially between statements of

witnesses and statements made by an accused. To an extent, pre-trial statements made by an accused are admissible in evidence so long as they have been obtained fairly; this applies both to statements taken during a preliminary investigation and when the accused is a suspect. The law is not, however, free from difficulty. There have been a series of conflicting decisions in this area and it is difficult to state the law with complete certainty.

Unsolicited comments

• If a suspect makes unsolicited comments outside the context of an interview but which might be relevant to the offence, you should make a written record of the comments. You should sign the record and record the time the comment(s) were made.

For your eyes only darling

Have the witness confine his comments to what he actually observed with his own eyes. Avoidrecording hearsay or statements that are not within the witness' personal knowledge. Use“quotation marks” when you write down what the witness actually says he saw. In addition,introduce the witness' quotes by using language like “the witness stated ….” If the witness reportsthat someone else described the incident to him, record the name and contact that person as soon aspossible.

Every time Always No Exemptions

Take witness statements and complete your investigation report in every case, even in thosecases where the injured patron states that he lost his balance or fell on his own. Never assume that an accident investigation is unnecessary because of the statements made by an injured patron.Always complete your investigation report and always obtain statements in every case.

Talk with me not at me

• You may take notes during the initial questioning of the witness. Your note taking should be unobtrusive and should stop if it is distracting to the witness.

Keep your questions simple and avoid using names or terminology that the witness does notunderstand. Let the witness do the talking.

Statements should contain clear specific details

It is important to ensure that the information contained in the statement isdetailed in a clear and concise way. As much relevant detail as possible shouldbe included, while irrelevant details should be excluded. A statement that islonger than it needs to be will not assist the Court when it has to decide what in fact happened.If there are gaps or inconsistencies in the witness’ account, the reasons for these should be included in their statement.Include facts not opinionsIn their statement, a witness should generally only give details of facts withintheir knowledge and not comments or opinions. There are some exceptionsto this. Also, if the witness’ belief is important, details should be given of the belief and the reasons for it.

A pictures worth a thousand words but a Coke can is worth a Jail Sentence

If the witness has difficulty remembering details, be patient. If the witness does not haveenough information to answer a particular question, record his statement that way. Do not insistthat the witness give a straight yes or no answer to every questions.The witness may have difficulty putting into words what he/she observed. In such instances,sketches or diagrams can be used. Your accident investigation report or safety survey should havea diagram of the rink that you can use to provide visual cues for the witness.

• When producing business documents such as invoices, bank statements or computer printouts as evidence they are admissible only if certain conditions are satisfied.

• A witness statement is required from an appropriate member of the business to the effect that the document was created or received in the normal course of that business and that the information contained in the document was supplied by a person who had or may reasonably have been supposed to have had personal knowledge of the matters dealt with.

It is important to remember that negative statements can be as valuable as positive ones. This particularly applies when dealing with alibi evidence.

further statements are taken• Interviewers should avoid using leading questions and should

record statements in an active style, i.e. ‘I posted the letter’ rather than ‘The letter was posted’. The interviewer should consider using how, what, where, when, why and who questions.

• If further statements are taken from a witness, these should be separate documents not additions to existing statements. Such additional statements should begin ‘ Further to my previous statements(s)......’ . If the additional statement clarifies something said in an earlier statement, both statements should be retained and submitted. The interviewer should note that all statements should be retained as either used or unused material.

Cognitive Interviewing Skills

• The interviewer should find a suitable place to talk to witnesses. Put them at ease and fully discuss the incident before embarking on the statement. Consideration may need to be given to interpreters, interview supporters, cultural differences and disability and communication issues. The interviewer should be satisfied the witness has told them all they know, before a statement is commenced. The interviewer should utilize, whenever possible, Cognitive Interviewing Skills in obtaining information for a witness statement.

Open ended or Dead Ended

Specific vs. Reflective

The end or the true end

• Concluding Questions

What is today is not tomorrow• When a statement is complete it should wherever possible be in

chronological order, it should make sense and be accurate. In general terms the resulting statement should provide a word picture of the events as they occurred.

• Any notes that are made in the process of compiling a statement must be retained. They may be used to negate or confirm subsequent statements by the same witness. Our job is to seek the whole truth and not just those parts that support our case. In certain cases a witness will retract their initial statement. This action should be viewed with caution and consideration given as to whether there has been intimidation. It may be advisable to obtain a second statement giving the reasons for retraction and whether the original statement was correct. A retraction statement does not necessarily mean that proceedings will be discontinued

You tell me I don’t tell you EVER

• The Statement taker must never encourage a witness to make a statement on the pretext that they will not be called to give evidence in criminal proceedings. The ‘Witness Information’ form explains the exact position to the witness and Interviewer should not deviate from the information contained within that form. A ‘Witness information’ form will be given to witnesses from whom we record statements. The interviewer should explain the contents of the form to witnesses and wherever possible obtain and record, on the statement form, any non -availability dates.

Tell me everything and then some• A statement should identify the witness and provide details of

status, occupation, position held, relationships, and so on, as appropriate. The statement should be in the first person and speech should be direct. It is important that the home address of the witness is not revealed in the body of the statement unless it is relevant to the offence. Whenever relevant a description of the witness, including details of clothing worn, should be included in the text. It is important that locations of incidents, damage to property and physical injuries are fully described. If possible each separate event in the statement should be enclosed in a separate paragraph. It is advised that the content of each paragraph is checked with the witness as it is written. It is important that the witness views this as his/ her statement not the interviewers version of events.

This has strict rules don’t go here

• Hearsay is information given to a witness by another as to facts not within the witness’ knowledge. It should be avoided whenever possible. However if there is doubt about whether something is hearsay or not include it in the statement, if necessary it can be excluded later.

Care and ABSOLUTE Control of the Data and Exibits

• Exhibits produced in a statement MUST be allocated a unique reference number and an exhibit label should be signed at that time. The unique reference number should be recorded in the statement. Whenever practicable each item should be given a separate reference number. As an example if a suspects clothing is seized each item should receive a separate reference number, whilst a box of mars bars would receive one reference number

COMPETENCE AND COMPELLABILITY OF WITNESSES

All persons are competent to give evidence provided they can understand the requirement to tell the truth, are capable of giving rational testimony, and are not excluded by any rule of law. Someone who is competent to give evidence is usually compellable as well, exceptions include accused persons and their spouses in certain circumstances.

Purpose gain vs. goalThe purpose of a victim personal statement is to; • a) provide a means by which a victim may make known their

legitimate interests, such as their wish to receive information about case progress; to express concerns about intimidation or the alleged offender being granted bail; their wish to seek compensation, or to request referral to Victim Support or other help agencies.

• b) give victims the chance to tell the criminal justice agencies and services dealing with their cases how the crimes have affected them -physically, emotionally, psychologically, financially, or in any other way.

• c) provide the criminal justice agencies with a ready source of information on how the particular crime has affected the victim, supplementing other sources of information available, for example detailing compensation, or the confidential information form,

Everyone Has Right as many as you do!

Planning and Preparation

• Understand why you wish to interview this person?

• Consider alternative courses of action and secondary plans.

• Location

• Equipment

• Other persons needed – Interview Supporters, Interpreters and so on.

• Cultural problems

• Briefing from Case file holder

Engage and Explain

• First impressions are important

• Form a proper relationship

• Inform of reason for interview and what is going to happen.

• Give common courtesy

• Establish what interviewee would like to be called

• Reassure person that they are a witness not a suspect.

• Consider welfare and refreshment.

Account, Clarification and Challenge

• Obtain and deal with interviewee’s recollection of events

• Cognitive -‘Free recall’

• Followed by a least one other ‘Free Recall’

• Alternatively use ‘Conversation Management’

Closure

• Be prepared for the closure. You may need to come back to this witness.

• Summarise

• Check comprehension

• Invite questions or feedback.

• Give appreciation of their hard work

• Indicate the value you place upon their assistance

• Consider Victim and Witness care.

Evaluate the data don’t put in the blanks to meet your needs

Evaluation

• Evaluate information obtained

• Evaluate whole investigation in light of information obtained

• Evaluate interviewers performance

Special Witnesses need special training

• Non-English speakers• Deaf witnesses and people with speech

difficulties• People with a visual impairment or reading

difficulties• People unfit to be interviewed• Dying witnesses

Everyone Get a CopyTry to interview one person at a time instead of a group. Group interviews allow one witness tohear the statement of another and the interview will result in confusion and repetitious statements.All statements should be signed and dated by the employee taking the statement and by thepatron or witness giving the statement, if possible. The employee should write his or her nameclearly and legibly and provide a home telephone number and address.Use of a tape recorder is acceptable in some states, but the circumstances should be carefullycontrolled. If you do use a tape recorder, please keep three factors in mind: a). a signed writtenstatement is the best evidence; b). the area where you record the statement may be noisy and maynot produce the best quality recording and may not be useful; and c). always remember that you may have to transcribe the statement and supply a copy to the claimant or his/her attorney

Think out side the Box But don’t let others hear you

Everything everyone has MOTIVE

Gain or Pain

YOU have a job to do

• It is important to memorialize the sequence of events in any given incident. One way to accomplish this is to obtain statements from the percipient witnesses. Nailing down a witness’ version of how an incident occurred early in a case can be one of the most important components of a thorough investigation.