by Nic Smith and Joanne Parrent

Interview versus Interrogation

First, what is a witness interview and what should a successful witness interview accomplish? Recent world events, as well as television shows and movies featuring cops, FBI and counter-terrorism agents, may have confused people about the difference between an "interview" and an "interrogation".

The United States Air Force actually defines the two words this way:

Interviews are cooperative, informal meetings where the interviewer approaches the witness as an equal and encourages their cooperation, allowing him or her to relate observations without interruption or intimidation.

By contrast, "interrogation" implies questioning on a formal or authoritative level, such as a lawyer-to-witness situation, a police officer-to-suspect session, or a parent-to-child encounter.

At PSI, we define an interview as a dialogue between two people - the investigator and the witness - in which the investigator's task is to facilitate an accurate recollection of events, of conversations or of any other facts that will help establish the truth about that which is being inquired into. An interrogation, on the other hand, is primarily about confronting a witness in order to get information the interrogator believes the witness or suspect has. An interrogation may occur at some point after an interview and may focus on contradictions and suspected lies in the witness' statement.

The goal of a witness interview is to discover if the individual being interviewed has significant knowledge relating to the case at hand - information that will help establish facts or information that either corroborates or refutes other versions of the incident - and to elicit as much of that relevant, material or useful information as possible. During the witness interview, the investigator seeks to discover what the witness - through all five of their senses: sight, hearing, smell, taste and touch - has observed. If the witness does, in fact, have important information to provide, the secondary goal of the interview is to obtain a signed witness statement.

Interview Do's and Don'ts

Working as an investigator for almost four decades has given Nic Smith the opportunity to interview and then interrogate thousands of individuals in both civil and criminal proceedings. Based on that experience, he has developed a curriculum that Parrent Smith Investigations uses in training all of our investigators. Our trained interviewers have a basic knowledge of the psychology of interviewing, have learned practical techniques to draw on in interviews, have had the opportunity for substantial practice and have been supervised and given feedback on their real-life interviews. Below are a number of interview "Do's and Don'ts" from our training materials:

1) Respect: Always conduct witness interviews in a way that is respectful of the interviewee. Using anything other than courteous dialogue - even when pointing out any discrepancies or falsehoods - will only produce lies and attempts at cover-up. The high number of false confessions and erroneous intelligence produced by criminal investigators or military "interrogators" who use threatening and confrontational approaches prove the effectiveness of a more respectful approach. Investigators should never make threats or promises or use coercive and oppressive tactics but should attempt to be open-minded, tolerant and impartial.

2) Truthfulness: The investigator must, in most cases, be truthful about the reason for the interview. A pretext is only appropriate in very limited situations, such as in insurance fraud investigations. One of the most important reasons for the telling truth - in addition to the fact that truthfulness on the investigator's part may help engender truthfulness on the witness' part - is that the witness may be called to testify in a civil or criminal proceeding in which the circumstances surrounding the interview will be disclosed. A pretext will only show that the investigator lied, and an opposing attorney may rightfully argue that the witness' answer may have been different were they to have known the truth about the inquiry.

3) Rapport: Developing rapport with the witness is vital to the process. Establishing good rapport helps the witness open up and allows the investigator to gently probe for bias or hidden agendas in the witness' characterization of events. Witnesses are much more likely to provide information when they are being treated in a friendly manner rather than if they feel as though they are being interrogated.

Also, frequently the investigator will be called upon to facilitate the witness' appearance at deposition and subsequently at trial, and a good relationship with the witness will aid the investigator in that task.

Establishing good rapport is something that a good investigator knows how to do both instinctively and from experience, but the following tips can help a novice investigator learn to develop rapport with witnesses:

• a) Make a good first impression on the interviewee. When first contacting a witness, be friendly yet professional. Show the witness identification and a business card.
• b) To help the witness relax and feel secure ask him or her some general friendly questions before any questioning about the subject matter of the interview begins. Show an interest in the witness and the witness' family, house, occupation and employer, hobbies, etc.
• c) Never patronize or talk down to the witness.
• d) Be willing to share occasional personal information in order to develop more trust.
• e) If the witness was a close friend of either a fatality, someone severely injured, or saw the incident occur, then a great deal of compassion for the witness and care for their well-being is necessary. If it becomes very difficult for the witness to tell the story, it is better to stop and put off the rest of the interview until a later date.
• f) Praise the interviewee's efforts at remembering details.
• g) Always be friendly, patient and supportive.
• h) Use eye contact in most situations, but be mindful that in some cultures prolonged eye contact should be avoided.

4) Open-ended questions: ALL questions in an interview must be open-ended ones, crafted to allow as much information to pour forth from the witness as possible. Asking questions that can be answered with a "Yes" or "No" simply stops the conversation and doesn't help the investigator discover what the witness actually knows. An indirect, conversational method of questioning lets the witness talk freely about his or her observations.

"Yes" and "No" questions are useful in legal proceedings in court or in a deposition in order to help an attorney establish the argument or theme that will be presented to a judge or jury, but they don't elicit the knowledge the witness has, which is the goal of the initial witness interview.

5) Listening without interruption: Listen to what the witness has to say without interruption. Use pauses and silence if necessary to encourage the witness to do the talking and provide information in his or her own words. If the witness stops talking before finishing the story, use encouraging statements like "I really appreciate this information, but was that when the car pulled away? What happened next?" "What happened next?" is a very powerful open-ended question to use to prompt the witness to continue the story. NEVER complete a witness' spoken comment. If interviewing a person who speaks very slowly or who frequently has to search for words, there is a temptation to "help" them by suggesting the word. Although ending other people's sentences is frequently done in conversations between family and friends, it is totally inappropriate in a witness interview and must be avoided at all times.

6) Follow-up questions: Listening carefully also leads to asking follow-up questions that may elicit important information. Follow-up questions include memory jogs for names - common/uncommon, length, first letter etc; memory jogs for person information - appearance, clothing, characteristics etc. A first attempt at recall by a witness usually reveals broad outlines but little detail. A lack of interruption by the interviewer, and questions that bring out the detail and help jog the memory will make the interview more successful.

7) No leading questions: Never ask a question that contains in it an element of the answer that the investigator may wish to establish. This can forever contaminate the witness' response. Interviewers need to be aware that interviewees are vulnerable to a range of suggestive techniques that can affect their recall.

For example, asking witness if it took at least two minutes for someone to emerge from a restaurant and run to the aid of someone establishes two minutes as the anchor point from which the witness will give the answer. Asking the witness instead to recall as many events as possible surrounding the individual leaving the restarurant and then asking, "How long a time elapsed from the moment you heard the sounds or sights of the car crash until the man ran from the restaurant?" will enable the witness to establish a more accurate recollection or to respond truthfully that they have no idea of the time elapsed. The investigator may ask for a best estimate but only accompanied by the witness' reasoning in making the estimate.

8) Location: The most productive interviews are generally conducted in the witness' environment, at home most often or, if need be, at work. This produces a more relaxed state of mind and the witness is generally less defensive. It also allows the investigator to get a sense of the witness' background from items that are seen in the home or workspace. Conversation tends to take place most comfortably at a ninety-degree angle. Sitting face-to-face can be too confrontational. If there are distractions, such as a television playing, ask the witness if they will turn it off or if you can move to another room.

9) Preparation: Preparation is critical to a successful witness interview. The investigator should develop thorough background information on the witness prior to an interview and familiarize him or her self with the information. Also, in a criminal defense case or a civil cases in which the witness may have already been deposed or has given a statement to another investigator or police officer, the investigator should not interview a that witness until the statement(s) has been obtained and reviewed.

The investigator should develop a list of general questions and specific questions (always open-ended ones!) that should be asked during the interview.

10) Recording and note taking: Record the witness interview whenever possible. Explain to the witness that we record interviews so they are accurate and, after transcribing the recording, we will show him or her the transcription. At that time, he or she can review and sign the statement if it accurately reflects what was said in the interview. Even when a recorder is running, it is a good idea for the investigator to take detailed notes if the witness doesn't feel intimidated or agitated by the note taking. The notes will not only help if there is any difficulty deciphering parts of the recording, but taking notes can help the investigator review the interview before leaving and ask any necessary follow-up questions.

If recording the interview, the recording should include: time, location, person's present during the interview, permission to record, proper identification of the witness and conclusion with ending time. If the tape recorder must be turned off at any time during the interview (such as for a bathroom break), verbally note the time it is turned off. Then, after re-starting the recording, say the time and ask the interview whether or not anything relevant to the investigation was discussed while the recorder was off (the answer from the witness should be an audible "NO"). Tapes used to conduct an interview are evidence and must be treated as such. They should be marked and labeled for identification and kept in a safe location.

11) Take your time: Don't rush the interview. Make sure the witness knows ahead of time about how long it may take. Experience has shown that no matter how long you think it will take, interviewing will always take longer.

12) Inconsistencies: If the responses of the witness to questions by the investigator are inconsistent with information that the investigator has from other sources - such as a statement given to police or testimony of other witnesses - ask the witness about those inconsistencies in a subtle way or, depending upon the rapport established with the witness, call them on it directly and ask them to explain the discrepancy. There are statements that the investigator can make which will allow the witness to cop to having made a previous false statement. Some of these are, "You know, everyone in the beginning of these cases wants their (friend, relative, co-worker) to have the benefit of the doubt, and it may be that you overstated or understated the facts. This happens all the time and it's no big deal." Or, "you know, in your initial statement you said you didn't know anything and now you are saying you know lots of things, is that because you were embarrassed to tell the truth the first time?"

In confronting a witness on inconsistencies, however, make sure the exchange is not adversarial. Remember that this is an initial interview, not an interrogation.

13) Nonverbal behavior: The investigator should also be aware of the witness' nonverbal behavior and notice changes in his or her speech patterns throughout the interview. If the witness appears ill at ease or displays variable speech patterns it can mean that he or she is not being truthful. Or it may mean it's time to move to a new line of questioning or end the interview for the time being.

Nonverbal communication can also provide clues to such things as the following:

• bias and/or prejudice
• accuracy of recall
• interest or lack of interest in the interview
• truthfulness or lack of truthfulness
• sympathy and/or empathy towards the plaintiff, defendant and/or the victim.

Research has found that facial expression, voice tone, silence, body positioning, eye movements, pauses in speech, and others aspects of body language and non-verbal communication all send messages. These may confirm, obscure, or contradict what is being said. There are some non-verbal behaviors that are typically associated with deception, but unless you have been trained in the detection of deception, it would be unwise to rely on these behaviors. People (including both interviewers and interviewees) often hold stereotypical views about non-verbal behavior that are incorrect. Thus, conclusions based solely on someone's behavior in the interview room are not reliable.

14) Reluctant witnesses: There are many explanations for why witnesses and suspects may not be cooperative in interviews, including fear of: embarrassment, retaliation, loss to themselves, legal proceedings, harming someone else or self-disclosure. The investigator's job is to find a good reason for the reluctant witness to disclose what they know. Careful, patient and empathetic questioning about the cause of the witness' unwillingness to talk will provide clues about what might help motivate them to become cooperative.

15) Concluding the interview: When the interview is over it is important to close out the session properly. First, the interviewer should ask the witness if there is anything else he or she would like to add. This gives the witness a chance to convey something that has not been covered by the questions. It is common for a witness to have information that they did not provide in the investigation because no one asked them the right questions. Also, it is a good practice to review with the witness the notes that were taken to ensure the witness is aware of what was recorded and that there are no misunderstandings. Tell the witness what will be done with the notes and the recording. Also explain that it is not uncommon for witnesses to remember additional events or details after the initial interview (especially regarding the distant past, as in environmental investigations) and that you would like to check back with them in a week or so to see if they have remembered anything else.Finally, thank the witness for their time.

16) Interview impressions: Immediately after the interview, the investigator should make notes regarding his or her impression of the witness. The investigator should describe the conduct, demeanor, attitude, character and appearance of the witness. These impressions may help the investigator's client ultimately determine if the witness is favorable or unfavorable to his or her case.

Witness Statements and Reports

Every interview is unique and potentially generates facts and information that can be used in many aspects of the case. Some interviews may contain powerful evidence that can make or break a case. The decision to transcribe the interview and convert it to a witness statement should be based on whether or not the witness has provided significant information and facts about that which is being inquired into. If not, make detailed notes about the interview in the report to the attorney-client.

If the witness refuses to give an interview and/or statement, it should also be noted in a report to the client. If a potential witness claims to know nothing about the incident, a negative statement wherein the witness indicates he or she did not witness the event and cannot provide any information about it, should be attempted. If a witness refuses to provide any statement, don't force the issue. Explain to the witness the reasons why a statement is preferred, how it may save time and aggravation in the long run, and, if applicable, how the statement will give the witness the opportunity to correct inaccuracies or mistakes in any statement they may have previously given to police or other investigators. In most cases, witnesses will agree to provide a formal statement if the investigator listens to and addresses his or her concerns and apprehensions.

When the witness is agreeable to making a statement, the interview should be transcribed (if recorded, or the notes typed if not), and a copy should be given to the witness to review, make comments or corrections and sign. If there are corrections, the witness should initial every correction. The witness' signature at the end of the transcription should be prefaced by a sentence like the following:

"I, (Witness Name) attest that the foregoing transcript of the conversation that took place between (Investigator Name) and me on (date) at (location), is an accurate transcription of that conversation. I further declare under penalty of perjury that the foregoing statements made by me therein are true and correct to the best of my knowledge and belief."

Who Should Conduct the Initial Interview?

How a witness is dealt with in the beginning of an investigation has ramifications that reverberate throughout the entire proceeding. Properly trained professional investigators benefit the legal practitioner enormously because they can approach witnesses as objective third-party contacts. While it is true that the investigator is working at the behest of the attorney client, the professional investigator's mandate is to uncover and develop all of the facts in the case, not prove the client's theory of how things occurred.

PSI field investigators are trained in every aspect of witness interviewing and are permitted to conduct field interviews only after they have learned techniques and mastered the stringent requirements developed by the partners of the firm.

We hope you will consider using PSI's services when you next require professional witness interviews and statements.

Nic Smith and Joanne Parrent are partners at Parrent Smith Investigations.