I N T E R V I E W T E C H N I Q U E S

PRESENTED BY DAVID B. MAC DOUGALL

I N F O R M AT I O N S E RV I C E S , L L C . C O L U M B I A , S . C .

A L icensed South Caro l ina P I s ince 1979

South Carolina Association of Legal Investigators

(SCALI)

National Association of Legal Investigators

(NALI)

National Council of Investigative and Security Services

(NCISS)

South Carolina Public Defender Investigator Association

This presentat ion is the resul t o f

decades of extensive psychological ,

soc io logical and anthropological s tudies

conducted by the br ightest and best

minds of a l l t ime.

N a a a a … . n o t r e a l l y …b u t i t i s t h e r e s u l t o f d e c a d e s

o f t r i a l a n d e r r o r

I N T E R R O G AT E :

Ask questions of someone, especially

a suspect or prisoner, aggressively.

I N T E R V I E W : A meeting of people face to face…

Synonym: conversation

Who does the best interview?

Why would you conduct an

interview if the police already did?

Here is a quote from a

North Carolina police investigator

”There’s a lot of investigative work

you do that you don’t put on paper

because you open yourself up to

the defense bringing it up in court”.

W H Y S H O U L D AT T O R N E Y S N O T C O N D U C T

I N T E R V I E W S A L O N E ?

Their time is more valuable

They can’t testify to impeach the witnesses

W H O

WHAT

WHEN

W H E R E

HOW

WHY

You’re looking for I N F O R M AT I O N . . .

Good,

Bad

or Indif ferent

Just the Facts Ma’am,

Just the Facts

W H O C A N Y O U TA L K W I T H ?

C O - D E F E N D A N T S ?

….a lawyer shall not communicate about the subject

of the representation with a person the lawyer knows to

be represented by another lawyer in the matter unless

the lawyer has the consent of the other lawyer.

...a non-lawyer employed or retained by a lawyer shall

be responsible for conduct of such a person that would

be a violation of the Rules of Professional Conduct if

engaged in by a lawyer.

I N T E R F E R E N C E W I T H T H E I N T E R V I E W E E

Improper intimidation of a witness

may violate a defendant's due

process r ight to present his defense

witnesses freely i f the intimidation

amounts to substantial government

interference with a defense witness'

free and unhampered choice to

testi fy”.

United States v. Saunders (1991)

The State v. Brad Edward Williams

In 1997 the South Carolina Supreme Court reversed a murder conviction because an investigator for the solicitor's office called the defendant's attorney and told him that it would be improper to interview the witness and that “the Solicitor's Office would not allow the interview."

Generally, courts have found unconstitutional intimidation where the government has advised a potential defense witness that it would not be in his "best interest" to talk to the defendant or his attorney.

But don’t worry about

Brad…

PREPARING FOR THE INTERVIEW

Know the case Know what your witness is supposed to know Know what questions you’re going to ask Bring accoutrements

• In terv iew forms • Pictures • Diagrams • Repor ts • Pr ior s ta tements• Tape & or v ideo recorder

HOW ABOUT A

SURREPTITIOUS RECORDING??

P r o b a b l y n o t a g o o d i d e a . . . .

The South Carol ina Supreme Court

has said that a lawyer may not

record any conversation without

prior knowledge and consent of al l

parties.

T H E I N T E R V I E W

Do you call and make an appointment?

As a rule…NO!

Show up…unannounced…be polite

Fully identify yourself with credentials

Fully identify your representation

Fully identify your purpose

Give them your business card

Let them process all you’ve told them

Take accurate notes

Record when appropriate

Speak like a professional

Ingratiate yourself to the witness

Avoid bling and other distractions

Fresh breath

Dress to impress – business attire

Who is going to be taken more seriously...

DON’T GIVE THEM TOO MANY WAYS OUT

They can say NO but you don’t have to accept NO

Don’t get angry; be persuasive.

Appeal to their sense of fair play

DON’T threaten or intimidate….it could be criminal

Be conversational

Get them talking, keep them talking and LISTEN

O b t a i n d e t a i l e d i n f o r m a t i o n

Names including a/k/a’s Date of birth Social Securi ty number Close family member address Family member phone number Employer Spouses name Anything else?

W h a t i s t h e v a l u e o f a

“NON-STATEMENT - STATEMENT?”

LO C K ‘ E M I N

L O C K ‘ E M O U T

E X C I T E D U T T E R A N C E

E x c i t e d U t t e r a n c e s

In South Carolina an “Excited Utterance” is,

“A statement re lat ing to a start l ing event

or condi t ion made whi le the dec larant

was under the stress of exc i tement

caused by the event or condi t ion” .

The statement must relate to a startling event

or condition; The statement must have been made while

the declarant was under the stress of the

excitement; The stress must have been caused by the

startling event or condition.

S H O U L D Y O U M E M O R I A L I Z E

T H E I N T E R V I E W ?

Written?? I f so…

Who writes it?

NCR forms

A u d i o r e c o r d i n g

V i d e o r e c o r d i n g

Should the statement be sworn?

G i v e t h e m a c o p y

T H E I N T E R V I E W R E P O R T

Does your client want a written report?

If so remember the most important criteria...

GET IT RIGHT!

GET IT ACCURATE!

GET IT 100% CORRECT !Review your final report with the interviewee

Send interviewee a copy

Retain ALL your notes and recordings

I n y o u r r e p o r t i n c l u d e y o u r o b s e r v a t i o n s

Any obvious pre judices

Any re l ig ious ar t i facts

Bumper s t ickers

Wi l l they make a good wi tness

Do they speak Engl ish

Wi l l they be a credib le wi tness

Body language

But i t ’ s WRONG to j udge…

W H I C H W I T N E S S I S M O R E B E L I E VA B L E ?

G R O O M Y O U R W I T N E S S

Answer their questions

Prepare them for cross examination

Allay their fear of what they will be asked

Explain hearsay: “…a s ta tement , o ther than one made by

the dec la ran t wh i le tes t i f y ing a t the t r ia l

o r hear ing , o f fe red in ev idence to p rove

the t ru th o f t he mat te r asser ted .

Ask about their background

Meet and greet them at court

SOME RANDOM THOUGHTS

Do you pay a witness for video or photos?

Do you pay a witness for testimony?

Do you use intimidation?

It’s not cross examination

Don’t give away trial strategy to witnesses

Ask questions to which you know the answer

Thank you for your attent ion

Go forth and investigate!