With so many people with busy schedules these days, sometimes, an investigator does not have the opportunity to sit down 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 can have a witness that has moved very far out-of-town. For whatever reason, the investigator now finds herself having to take a statement via email or the phone.
There are several steps that we follow specific to these methods of recording testimony: (For this article’s purpose, references to emails and phones numbers are for those to be used in connection to a witness’ statement.)
- Verify your witness’ identity. Via phone or email, you may not be able to tell if you are speaking with John Doe, Sr. or Jr., so ensure you are speaking with your true witness by verifying personal identifiers such as full name, DOB and SSN.
- 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, “Don’t text this number ever again. I don’t know where that lying cheater is and I never want to hear from him again either.” 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.
- 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 beach house or ski chalet. 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, the strength of your witness’ recall is critical in that the other side can then determine the validity of the monetary demand by the plaintiff’s attorney. Witnesses should therefore, prior to any official statement recording, be walked through an initial recitation of events involved in the client’s matter to a) jog and strengthen their memories and b) allow the witness to experience the logical chain of thought involved so that the memories are returned in efficient, logical order – especially important if live court testimony will be involved, enabling the witness to become adjusted to the pace of Q&A. Also, always write for the court. Presume a judge will see your witness statement at some point. The witness’ recall must therefore be recorded 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 ensures that no relevant information is lost or goes unrecorded.
- Request the contact formation of at least two emergency or backup contacts. Two alternate contacts should be on record for any witness statement undertaking, in-person, via phone or by email. 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.
Keep in mind that a strong witness statement may position a case for a fair settlement sooner rather than later.
BNI Operatives; Situationally aware.
As always, be safe.