Interviewing A Hostile Witness: The Recorded Memo Statement.

hostile witness


The main purpose of a professional investigator is to gather facts.   One of the primary methods of fact-gathering is the witness statement. Statements may take various forms – affidavits, hand-written statements by the witnesses, statements written by investigators and signed by witnesses and recorded (audio and audio and visual) statements.

Regardless of the form, a statement has three primary purposes:

  1. SETTLEMENT — to develop information for a case for purposes of settlement;
  2. TESTIMONY PRESERVATION — to preserve the recollection of a witness; and
  3. CHALLENGE TESTIMONY — to document testimony and provide a recorded base line against which a potentially hostile witness might later be challenged on with regard to less than truthful testimony.

There are times when an investigator has to deal with an uncooperative or hostile witness.   An investigator must walk along a fine line when interviewing a hostile witness because if the statement isn’t comprehensive with regard to the crucial events of the case matter, the statement may potentially be useless.  Additionally, information contained within the statement may not be favorable to the client’s position.   A statement does more harm than good if it contains helpful information in one part and is then so potentially detrimental to the client’s position in another that it can not be introduced.   To deal with this situation, a seasoned investigator should know how to both investigate a case and simultaneously preserve the work product for use at settlement talks or trial later on.

While obtaining a recorded statement is the obvious objective, at times, with a hostile witness who refuses to provide such testimony, it becomes especially necessary for the investigator to record testimony.  Most professional investigators will use a method known as the “memo statement”.

How To Produce A Memo Statement:

  1. In any case, before interviewing a witness, review all pertinent police and agency reports, statement of facts from the attorney and any additional information provided or determined.  Know the basic facts before meeting with the witness.
  2. When you meet the witness, if s/he is unwilling to provide a recorded statement, advise them that you will be providing your client with a “Memo Statement”, in effect, confirming that you met with the witness, advised of the facts of the matter as you know them to be and will do so in the presence of the witness so that s/he has the opportunity to correct any statements you may make.
  3. Take out your recorder and use a similar script as this one:

Investigator Jane Smith: This will be a memo to attorney John Doe from Investigator Jane Smith dated March 1, 2016. The case name is Jim Brown vs. XYZ, LLC. The subject interviewed is Mike White.  On March 1, 2016, at approximately 5:45 p.m., I proceeded to the residence of Mr. Mike White and thereat spoke to Mr. White with regard to the above-referenced matter. I conducted an interview with Mr. White; however, he expressed his desire not to give a recorded statement. In the interest of accurately reporting the information Mr. White has provided me, I am dictating this memo in real time in his presence with his permission in the dining room of his home; is that correct, Mr. White?

White: Yes, that’s correct.

Smith: Mr. White advised that on January 1, 2016, at approximately 3:30 p.,m. he was stopped at the red light at the intersection of Scher Blvd. and Franklin Avenue in Franklin Square, NY.  He was traveling Westbound on Scher Blvd.   He was the first vehicle at the red light of this four lane roadway (2 lanes each, East and West Bound).  His vehicle is a 2014 Honda Accord 4-dr sedan.  He was the sole occupant of his vehicle.  Thereat, at that moment, he observed a dark colored SUV driven by a white female, approximately 25 years of age, traveling East Bound on Scher Blvd., pass through the red light and, at the center of the intersection, strike a light colored SUV lawfully traveling Northbound on Franklin Avenue.  Said female made no attempt to slow down or stop for the red light facing her or to avoid the light colored SUV being driven by a white male, approximately 50 years of age. Is my description of your observations correct, Mr. White?

White: Yes, that’s correct.”

Short, to the point and accurate.  Other information can be added such as a description of the weather and roadway conditions, position of the sun, that the witness had an unobstructed view of the intersection and the collision, whether there was construction occurring at that location at the time of occurrence, etc.

If the interview is going well, at some point the investigator should introduce an intentional error so that the subject can correct it for you during the live recording.

End the memo statement with a form of the following:

Smith: This is Jane Smith concluding my dictation concerning the above-referenced matter.  Mr. Mike White  has been present during the entire time that I dictated this memo. Is that correct, Mr. White?

White: Yes, that’s correct.

Smith: Mr. White, has everything I’ve said in this memo been accurate and true to the best of your knowledge?

White: Yes, that’s correct.

Smith: And in those statements in which I’ve mistakenly said something that you did not agree with and you corrected it; is that correct?

White: Yes, that’s correct.

Smith: Mr. White, is there anything that you would like for me to add or change in this memo?

White: No.

Smith: And your full name is…?

White: Michael Robert White.

Smith: This is Jane Smith concluding my dictation concerning the matter of Brown v. XYZ, LLC.

In some states, this method might not meet the legal requirements for consensual recording; however, in those cases, to possibly circumvent the exception, you might, at the end, ask the subject if he understood that his comments also were recorded on the tape.

At least in the case of a recorded Memo Statement, you are not leaving empty-handed if dealing with a hostile witness and are refused a written statement.  Also, this method more accurately documents the witness’ observations rather than a simple written statement that you would have produced.

Don’t take a “no” as the end-all when faced with an uncooperative witness without at least trying to obtain a Memo Statement.

BNI Operatives: Situationally aware.

As always, stay safe.

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