Interviewing witnesses

Interviewing witnesses

Each important witness should be interviewed before trial. Counsel must know exactly what the witness will say, as well as the witness's attitude when saying it. The interview is not only a time to gather facts, it also provides an opportunity to establish a good relationship with the witness.

It will be easy to establish a rapport with some witnesses; and they will be helpful to the defense. With other witnesses, a respectful demeanor by the witness will be more likely and, possibly, more useful. Still other witnesses will demonstrate considerable caution in their interaction with the defense attorney. A witness's posture may be a help or a hindrance depending on defense counsel's ability to read and react appropriately to each witness.

Counsel must determine if the witness will make a good impression on the jury. Some witnesses are inherently untrustworthy or will appear that way to the jury. Computer workers have a reputation for not being good communicators. While this stereotype may be true, it is not true in every situation. If a computer worker is not used to public speaking, he or she may be extremely difficult for the jury to understand. However, eloquent computer workers do exist.

Counsel should also take note of the general personality characteristics, such as level of intelligence, sense of vision and hearing, and memory.

A defense attorney should prepare each witness for a cross-examination intended to diminish the credibility of the witness. If a witness is unable to deal with the stress of cross-examination, counsel needs to know this before trial.

Initially, at the witness interview, the attorney should acknowledge the witness's involvement in the criminal trial and the feelings a witness may have toward being involved. More often than not, the witness will be unfamiliar with the legal proceedings, not particularly happy to be involved, and fearful that he or she will be made to look foolish by the prosecutor. Before determining the substance of a witness's testimony, it is wise to elicit from the witness his or her feelings, fears or expectations; counsel should also try to allay these fears as quickly as possible.

It is useful to reproduce the interview with the witness, particularly if it appears that the witness may change his or her story. Tape recordings are the most precise way of recording the interview, but such may inhibit the witness. In most jurisdictions, it is illegal to tape record the interview without informing the witness of such.FN52

Written notes are useful if a tape recorder is not being used. Noting taking during the interview may create an obstacle in creating a relationship of trust between the witness and the attorney. However, the more an attorney uses any one technique, the more natural he or she will be with it, which will result in less objections by the witness.