Now, post-COVID, with so many people continuing to employ phone, text, email and Zoom communication, often, an investigator may not have the opportunity to sit down face-to-face with a witness and take a statement. While an in-person statement is best and the ideal as the operative can view the witness’ demeanor, mannerisms and interpret the witness’ body language, that simply may not be possible. Or, you may have a witness that has moved or is otherwise out-of-town. For whatever reason, the investigator now finds herself having to take a statement via email, phone and or Zoom rather than in person.
There are several steps that we follow specific to these methods of recording testimony:
- Verify your witness’ identity. Via digital communication, you may not be able to tell if you are speaking with John Doe, Sr. or Jr., so ensure you are speaking with the actual witness by verifying personal identifiers such as full name, DOB and SSN and, if possible, have the witness provide a government i.d. on screen.
- Verify the owner/registrant of the phone number or the email. Imagine trying to follow up with a witness for clarification on a point in his statement only to get this text in return, “You have the wrong number. I don’t know who Mr. Smith is.” Or, worse, you disclose sensitive information in an email only to find out that, for his own purposes, your witness had given you someone else’s email address. An investigative operative knows how to verify communication information.
- Verify the person’s residence rather than where they are staying on the date and time of your call/email. You may be reaching someone at their aunt’s home, a friend’s beach house or their ski timeshare. Ask if the address is their permanent residence.
- Before taking any statement, talk with your witness at length. Remember that a witness statement is taken not only for the sake of preserving evidence and recall of events, but also for the purpose of negotiation, therefore, your witness’ recall is critical in that, based on the witness statement, the other side can then determine the strength of opposing counsel’s case. Prior to any official statement recording, the witness should be walked through an initial recitation of events involved in the client’s matter to a) re-activate their memories and b) allow the witness to experience the logical thought process involved so that the memories are returned in efficient, logical order. This thought flow is especially important if depositions or live court testimony are likely, thereby enabling the witness to become adjusted to the pace of Q&A. Also, always write for the court. Presume a judge or mediator will see the witness statement at some point. The witness’ recall must therefore be recorded accurately and clearly.
- *Use a witness statement checklist for the actual statement. An investigator can go off script if there is reason to but for the most part, a comprehensive statement checklist helps to ensure that no relevant information is lost or goes unrecorded.
- Request the contact information of at least two emergency or backup contacts. Two alternate contacts should be on record for any witness statement undertaking, in-person, via phone, email or by Zoom You do not know the witness’ plans to relocate and neither may she at the time of statement intake.
*Below is an actual Witness Statement Checklist currently in use by BNI operatives for MVA (Motor Vehicle Accident) incidents. (Bear in mind that during the witness interview, other questions not on the checklist may arise so always have an extra, lined blank form available for the extra information.) Two images:
Keep in mind that a strong witness statement may position a case for settlement sooner rather than later.
BNI Operatives; Situationally aware.
As always, be safe.
The Beacon Bulletin 