Tips for Witness Preparation for Investigative Interviews

10/30/2014

The purpose of this memorandum is to summarize some helpful witness preparation “rules” that we will be discussing in reference to your upcoming interview. These “rules” are presented as a guideline to assist you as you prepare to give testimony, and they should be used in conjunction with our discussion during our witness preparation sessions. During the investigatory interview, your goal is to provide complete and accurate answers to the questions asked of you and as you do so, to be polite, firm, well-paced, and precise. These concepts are discussed throughout the memorandum.

The interview is a very serious, and sometimes a risky process. Every question, no matter how inconsequential it may seem, has a purpose. and every statement will be recorded. If the investigator or anyone else attempts to talk to you about the subject matter of the interview without your attorneys’ presence, you should politely, firmly and immediately decline to answer and to tell your lawyers right away.

Make sure to review this memorandum several times carefully and thoroughly before and after you talk to your lawyers to ensure that you are adequately prepared for the interview.

Take Your Time (Or: “He who writes the rules wins the game”)

Follow this rule and the rest will be much easier. Listen very carefully to each question asked before you give an answer. A question may be compound and ask two questions in one. You will only want to precisely answer the question asked, so make sure to take the time to listen to the question. You do not want to open up “a can of worms” if the question does not call for extraneous information. If you need a question repeated, request the examiner to ask the question again. By taking your time, you will avoid these potential pitfalls.

There are no shortcuts: The harder you try to move things along and “be helpful,” the longer and harder your testimony will be. Instead, right from the first question, pause a good five seconds after every question before answering. Do not wait until the middle of the testimony to do this; it will be much harder. Remember, it is your oath and your testimony: You should control the pace whether it makes the investigator happy or not. The written record looks the same whether you take a minute or a second to formulate your answer, but your answer will be better for the extra careful thought. Waiting five seconds after every question will help you in several ways:

It will keep you from feeling rushed.People in a hurry make mistakes.Questioners know that, and some may try to push you faster just for that reason.
b. It will give you time to make sure you really understand the question, and to think about the best, most truthful, and most precise answer.
c. It will give your lawyers time to object, if appropriate. If there is an objection, stop, listen, and wait until you are advised to continue.
It will help to do your job during the examination to keep things clear.

Always Remember You Are Making a Record (Or: “You can’t un-ring the bell”).

The most important person in the room is the only one who does not say anything: the court reporter, person taking notes, or the tape recorder. Everything – questions, answers, comments: everything – may be taken down and every word may be scrutinized closely. Answer each question as if you were dictating the first and only draft of an important document (you are!). This may help force you to discipline yourself to make a thoughtful, careful reply.

Make sure to talk in complete sentences unless you are asked a question which requires a yes or no answer. Be careful of compound sentences. In particular, when discussing conversations, make clear whether you are paraphrasing or giving a direct quote. Do not state any absolutes, like “I never” or “I always.” Do not guess on answers to questions if you are unsure or if you did not hear the question correctly. If you think you may have misstated your response or you think you need to clarify it further, let your lawyers before you do so. Finally, do not adopt the investigator’s summary of your response if it contains any inaccuracies.

Tell the Truth (Or: “Always tell the truth: It makes it so much easier to remember what you said the first time”)

This is more than a useless maxim; it is a rule of self-preservation. Lying here is not only a crime: it is foolish. Assume that the investigator is more experienced than you think, and that this includes the ability to make a witness who is playing fast and loose with the truth very uncomfortable. Telling the truth includes being yourself, warts and all, without being defensive. Make sure to be yourself. Little white lies as well more substantial lies may be pursued to the same extent and magnitude. If something the examiner says is not exactly right, then do not agree with it. You are the witness and only what you say matters here. The investigator will interview other Agency employees Therefore, you must make sure that you set your story right and tell the facts accurately.

As noted, be readily aware of the penalty of perjury which prescribes that, if you give sworn or unsworn testimony and do not tell the truth, you may be subject to a monetary fine and/or a sentence of imprisonment up to five years. The authorities and government agencies have and continue to routinely prosecute persons who commit perjury.

Be Relentlessly Polite (Or: “Don’t tease the bear”)

Everyone here has a job to do. Your job is to listen hard, think carefully, and answer questions. The investigator’s job is to ask the questions. Do not waste your time and energy belittling or attacking the investigator’s job: thinking, saying or implying negative things about the investigation, the questions, and so on. You will accomplish nothing, distract yourself from your difficult job, and needlessly antagonize the investigator. If there is a reason for things to get difficult, leave that to your lawyers: Stay above the fray. Give direct truthful answers to the questions asked, and do not dodge the investigator’s questions. Lastly, do not question the questions. That is the job for your lawyers to do. No matter how menial or insignificant the questions may be, just answer them to the best of your ability.

Don’t Answer a Question You Don’t Understand (Or: “What we have here is a failure to communicate”)

When you review your transcript, you will be amazed at how many questions were really incomprehensible (or misunderstood). Do not wait until it is too late. You have a right to clear, simple questions, and to answer only questions you understand. Even the best investigators sometimes phrase questions badly, and even the best witnesses get distracted and do not hear a question. Do not answer those questions. Just say, “Would you please rephrase the question.” No more than that. Understanding includes being comfortable with a question, the language, and the assumptions that are included. If you are not comfortable with any of these questions, do not answer them. Challenge bad assumptions (“When did you stop beating your spouse?”). Do not answer a question if it gives more than one choice, and the choices are all inaccurate or bad. Ask the investigator to rephrase questions. Finally, take each question one at a time and do not focus on other questions that may later follow.

If You Do Not Remember, Say So

The pace of litigation today means that testimony often does not happen until months or even years after the events at issue. This is not your fault; it is just reality. Events or facts that may have been insignificant to you even when they happened may now, much later, have taken on some significance to the investigator, but you can still only testify to what you precisely remember. This is surprisingly unnatural and difficult: In our normal conversations, we rarely just say “I don’t remember,” and stop. Rather, we guess and assume to help keep the conversation going (and maybe to make ourselves look smart). Do not do it in testimony. If you do not have a clear and precise memory, just say, “I don’t remember,” and stop. You should say you do not remember only if you believe you knew of the information at some point, but do not specifically recall the information during your interview. You can also say that, “I don’t know” only if you never and still do not have any information about the subject of the question.
However, do not respond that you do not know the answer or you do not remember only if those answers are truthful and accurate; do not use those responses to mask the real answer. Again, remember that you may be subject to the penalty of perjury or an administrative investigation/penalty if you give false testimony.

Do Not Guess

If you are not sure or do not know, say so. Just say, “I don’t know,” and stop. This, again, is unnatural, but critical. In our everyday conversations, we guess, estimate, and make other kinds of imprecise comments to keep the conversation going, knowing that we will never be cross-examined or held to our precise statement. Everything changes here: You can be only as precise as you are precisely and absolutely certain. Only report on what you exactly know and do not give information on details in which you do not have first hand knowledge (i.e., your spouse borrowed your car but you do not know where she went – do not make any assumptions and guess where she went) “Guessing” includes two broad categories:

A. Factual Details

Guessing about the smallest factual details can even get a witness into trouble. One problem is that when you guess, there is a chance that you may guess wrong especially when your memory is not 100% clear.This is particularly dangerous with things like dates, times, and numbers. If you say, “I don’t know,” and the questioner pushes for your “best memory,”or something like that, make it very clear that “I would have to guess.” If he or she still pushes for your “best guess,” give a range that leaves you a generous “margin of error.”Do not narrow that wide range unless you’re absolutely certain.

B. Inferences

The other type of guessing we also do every day, but may not recognize as guessing: We draw conclusions, inferences, and opinions (“Why did X do this?”; “What did Y mean by that?”). We may know enough about the issue that there’s a good chance we’re right. That is fine in a normal conversation. In testimony, 95 percent is not good enough: it is 100 percent or nothing.

That means that you can only testify about what you precisely saw, heard, or did. The more intelligent and talkative the witnesses tend to present an impression that they have all the answers. Put these natural tendencies aside as you do not need to prove your intelligence which might make your experience as a witness more lengthy and unpleasant and which may create an inference that you have guilt.

Do Not Volunteer

You are there to answer the questions carefully, completely, and precisely, and then go home. Keep it Simple. Speak clear and plain English and try not to use too much jargon. If a question is too long or complex, don’t answer it and ask that it be rephrased. Whatever the question, keep your answer as simple and narrow as possible, and then stop. If the investigator does not follow up with more questions, and thereby misses other information, thatis not your problem. Do not:

– volunteer information beyond the narrow lines of the question;

– help educate the investigator;

– help the investigator ask better questions;

– explain your thought processes: or

– fill in the silences.

Also, you may feel the need to express your personal opinions on the matter and to get out your side of the story, please remember that this is a fact finding session, which goal is to gather the facts. Opinions are usually not required and are unnecessary.Therefore, stick to the facts and do not use this session as the opportunity to air your feelings in this forum.

This rule is especially important to remember both immediately before and after the examination will take place. Do not talk to the investigator to any degree about the subject matter of the investigation without the presence of your attorneys. Your opportunity to disclose information only takes place during the actual interview.The investigator could use information obtained outside the investigation against you even though it may not be “on the record.”

Be Careful with Documents and Prior Statements

If you are asked a question about a document (or about something that is contained in a document), you should pause to allow your attorneys the opportunity to communicate with the investigator about the ability to review the documents before you answer questions concerning the documents at issue. This includes a prior statement or transcript. If you are not allowed to see the document(s)in question, say soon the record and, under no circumstances, should you guess about what it says. The document will speak for itself. If you are allowed to see it, read the entire document or statement carefully, as if it were your first time, consult with your attorneys if it would be helpful, ask to have the question asked again, and then focus not just on the words the investigator may have picked out, but on the whole portion of the document related to that issue. This also applies where the investigator may only ask you questions about a particular part of the document rather than questions about the document as a whole.

Use Your Lawyers

Do not be shy about talking to your lawyers for whatever reason, and however often.

Whatever anyone might say, it does not “look bad”on the record, and it will not reflect badly on your testimony.Whether it’s because you do not understand a question, are not comfortable with

a new issue, just thought of something, want to review a document, made a mistake, or just need a break, talk to counsel (outside the room, if necessary). Use your lawyers in other ways, too:

– Do not agree to supply any information or documents requested by the investigator. Your lawyers will either answer the request or will take the request under advisement.

– If an objection is made to a question, listen to the objection very

You may learn something about the question and how it could be handled from the objection. Do not answer over the objection until the issue is fully resolved with the investigator.

– If you need to speak with your lawyers privately outside of the presence of the investigator with regard to any questions or concern, please state so.

Your lawyers will coordinate with the investigator to ensure that you will be able talk privately with them without the investigator in the room.You should ask to speak with your lawyers especially before you state any revelations that may have just hit you or if you have any particular requests.

– Generally, your lawyers may ask for a break after every 15 minutes.

However, if you feel that you need a break sooner for any reason,including you just thought of something or are uncomfortable about an issue, let your lawyer know and they will coordinate the break time with the investigator.

– If the investigator asks to look at a document, wait until your lawyers respond to the investigator to ensure that they also have a copy of the document while you are providing your testimony.

Finally, treat the testimony seriously. Avoid any attempt at levity. Pomposity is the occupational disease of the legal profession: You will be hauled over the coals for not taking your solemn oath seriously if you make jokes or wisecracks. Avoid even the mildest obscenity or derogatory comments. There is no such thing as “off the record.” If you have any conversation with anybody other than your lawyers, be prepared for questions on that conversation.

You and your lawyers will have the opportunity to confer during the interview, and you may state that you need a break to confer with me at anytime during the interview. However, your lawyers may also use the following cues to let you know that you need to follow a particular rule, and you should remember that your lawyers are referring to a rule when they say any of the following phrases:

When Your Lawyers Say:
“Slow down.”
“Did you understand the question?”
“If you recall.”
“Do you know?”
“You’ve answered the question.”
“Have you read the document?”
“Do you need a break?”
They are Referring to Rule:
Take your time.
Do not answer a question you do not understand.
If you do not remember, say so!.
Do not guess.
Keep it simple: Do not volunteer.
Be careful with documents.
Use your counsel.