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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.

Profile Of An Employee Thief.

employee theft

The vast majority of annual losses that result from criminal activity in business and government entities are not caused by shoplifters or burglars in the United States. It is employee-thieves disguised in many forms who commit their crimes, which are, unfortunately, often discovered long after their various schemes begin. (We recently worked a case involving a medical clinic with 120 employees, 27% of which possessed a significant criminal history.  The average for a company this size is 2- 3 %.  In next week’s Part II of this series on employee theft, we’ll go more in depth with the details of this particular entity’s setup, causal factors and how we resolved the issue.)

Their many schemes are identified as occupational fraud by the Association of Certified Fraud Examiners, or ACFE.

Based upon the Gross World Product, the ACFE estimates that global losses from fraud may be $3.5 trillion.  No entity is exempt and just about any employee can be engaged in some form of fraudulent activity and theft, be it office supplies, time, gasoline, telephone calls, cash, assets, food, liquor, artwork hanging on the walls, bed sheets, pillows and blankets, dishes, narcotics, credit cards, checks, information, and whatever else is available for the taking. They pad time sheets and expense reports, submit false medical claims, forge mortgage documents, submit phony bills to clients and customers, and just about anything else that you can imagine.

The businesses or entities most at risk

The businesses most at risk to internal fraud and theft, in the order of losses from highest to lowest, are banking and financial services, government, and public administration, and the manufacturing sectors. Small employers (fewer than 100 workers) are more commonly victimized than larger companies because they usually cannot afford strong anti-fraud measures. They’re also often not in a financial position to absorb losses and  keep their business going as a viable entity.

Shocking statistics about losses

Businesses, globally, experience losses of about 5% a year from schemes committed by employees. The average  loss was about $400,000, and in one-fifth of businesses that were surveyed in the ACFE study, the loss was at least $1,000,000. In the least costly forms of fraud, the cost to business was about $120,000.

In about 87% of the cases the assets was the leading cause of losses. While financial statement fraud accounted for only about eight percent of all cases, it had the highest median loss of about $1,000,000 per occurrence. Finally, corruption and various phony billing schemes made up about one third of all cases but more than fifty percent of the dollar losses, for an average of $250,000.

Many cases will never be discovered in time and therefore, the actual amount of the losses may never be known . In cases that are referred to law enforcement, 55% of the offenders plead guilty, 19% of prosecutions are declined, and 16% are convicted at trial.

Profile of an employee-thief

ACFE reports analyzed a number of factors to identify the thieving employee: gender, personal credit history, education, criminal history, employment history, job duties and responsibilities, lifestyles and other influences in the employee’s life and concluded that long-term employees are the most suspect because of their knowledge of the inner workings of the entity and understanding of the controls that they must circumvent.

As a general rule, occupational fraud is carried on by men and women who fit into the following profile:

  • College educated employees are most likely to steal, those with high school degrees are second, and those with either graduate degrees or some college are least likely to commit criminal thefts;
  • Most who engage in fraud are first time offenders within the criminal justice system. The vast majority (87%) have never been charged or convicted of a fraud related offense, and almost the same percentage (84%) have never been punished or terminated by an employer for fraudulent conduct. Only five percent had prior offenses or had been charged but not convicted;
  • Two-thirds of the crimes are committed by men 31 to 60 years old. The highest concentration is between the ages of 36 and 45;
  • More than 75% of frauds occur in six departments: accounting, operations, sales, executive upper management, customer service, and purchasing;
  • The more authority an employee has, the larger the losses will be, with a median value by owner/executives of $573,000;
  • Losses caused by managers averaged $180,000 and by employees, $60,000;
  • The longevity of employment is related to the amount of losses. This is because the longer a person is employed the more he or she is trusted and is subjected to less scrutiny; and they have a better understanding of the system. Consider Bernard Madoff and the number of years he was able to defraud investors;
  • Employees who commit fraud during their first year (fewer than 6%) will cause an average of $25,000 in losses. Almost half the losses (42%) are caused by employees who have worked from one to five years. Those that worked for the company more than ten years caused a median loss of $229,000.

Now that you understand the make-up of a company thief, next week we instruct on loss prevention.

BNI Operatives: Situationally aware.

As always, stay safe.

 

Need An Email Vapor Trail? Disposable, Anonymous Email Addresses.

Sometimes you just want to read an article (and have to register), redeem a coupon or spy on the opposition. (One can play clean and hard and be creative!)

The gmail jig – that of creating new, temporary accounts for one-time or express purposes –  is up.  As soon as any of us now experienced email users see a gmail address from an unknown sender, we will either junk it or run back the sender info to identify its real originator.

So, what do you you if you absolutely, positively need to send a non-traceable email?

Fortunately, prescient program developers have filled in this gap and we now have reliable temporary anonymous email generator sites from which to dispatch our hidden sender messages.

Below are our favorite disposable email provider sites:

Guerrilla Mail

Disposable Temporary E-Mail Address:  Lasts for 60 minutes, either use a domain provided to you or create your own.

Hide My Ass – (Ok, our first test run was out of curiosity.  With a name like that…)

“When websites or persons you do not necessarily trust ask for your email address, give them one of our anonymous email addresses and hide your true email address and online identity.” – can last anywhere from 24 hours to 12 months (year) – “Hide behind one of our email address aliases and never have to reveal your real email address.” – “Need to register on a shady website? Stop spam emails from entering your real email inbox.”

SendAnonymousEmail 

“Every day over 60,000 free anonymous emails are sent from our servers, making us the world’s largest and most trusted anonymous email service” – It is a one time use email (obviously can be used multiple times using different anonymous emails)

Anonymize responsibly.

(Visit www.sjbn.co for great info on everything techno-related as it applies to domain searches, email identifiers and tagging.)

 

As always, stay safe.

How To Conduct Reverse Image Searches.

reverse image

Often, for research or investigative reasons, we need to know the origin or definition of an image or assess it as copyrighted material.  The two best methods are through  TinEye and Google.

TinEye is a reverse image search engine.

Google:

Reverse image search

You can use a picture as your search to find related images from around the web.

How reverse image search works

When you search using an image, your search results may include:

  • Similar images
  • Sites that include the image
  • Other sizes of the image you searched for

Search using an image works best when the image is likely to show up in other places on the web. So you’ll get more results for famous landmarks than you will for personal images like your latest family photo.

Reverse image search using your computer

You can search using an image on these computer browsers:

  • Chrome 5+
  • Internet Explorer 9+
  • Safari 5+
  • Firefox 4+

Different Ways To Conduct Reverse Image Searches:

Upload  a file. 

  1. Visit images.google.com or click the camera icon in the search box on any Images results page camera icon.
  2. Click Upload an image.
  3. Click Choose file.
  4. Select the image from your computer.
Drag & drop an image into the search box.

If you’re on Chrome or Firefox 4+, you can drag an image from your computer into the search box.

  1. Visit images.google.com.
  2. On your computer, click the image you want to search for.
  3. While holding down the mouse, drag the image into the search box.

Search Using an Image URL.

  1. On any website, right-click an image and select Copy image URL.
  2. Visit images.google.com or click the camera icon in the search box on any Images results page camera icon.
  3. Click Paste image URL.
  4. Paste the URL you copied into the box.
  5. Click Search by image.
Right-click an image on a site (Chrome & Firefox).

Chrome

  1. Right-click any image you see on a website or in search results.
  2. Click Search Google for this image.
  3. A new tab will open with your results.

Firefox

  1. Download the Search by Image extension.
  2. Right-click any image you see on a website or in search results.
  3. Click Search Google with this image.
  4. A new tab will open with your results.

BNI Operatives: Situationally aware.

As always, stay safe.

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