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Tips For Witness Statements By Email Or Phone & Statement Checklist

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.)

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. *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.
  6. 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.

From The Mouths Of Babes; Interviewing Child Witnesses.

child interview

(This article is from an investigator’s perspective. Trial attorneys bear a different obligation to prepare the child for testifying in court.)

From time to time we’ve had to interview children.  For this article, we are referring to minors under 16 years of age as witnesses in civil or criminal matters.  The most important thing to do when questioning children is to establish trust.  Most children are painfully shy when talking to strangers – moreso in situations that are fraught with tension such as giving testimony.  Put the child at ease by showing an interest in her by asking open-ended questions about her everyday life.  Due to their agile brains, children can multitask quite well so to divert her attention somewhat from the intensity of what she may have witnessed, distract her during the questioning by providing a fun and engaging activity.

We go into each interview with a child thinking this will be the only shot we will get to question her.    You really don’t want to interview a child multiple times.  If a child is re-interviewed often and then has to live testify, the final product in court may come out sounding rehearsed.

Given the unsettling event that the child has witnessed, each recall may induce stress trauma so we prefer to have a parent or guardian present during interviews.

As to the actual questioning itself, make the questions are open-ended and simple to avoid being leading.   If you call a child as a witness and she misstates or fails to state a significant fact, the best tactic is to avoid confronting her with prior statements or intricate evidence. Asking the same question in a slightly different way may be all you need do to obtain the accurate response. Generally, you should confront a child with a prior inconsistent statement only if she is recanting her entire account of an event.  When confronting a child with inconsistencies, do so in a delicate and respectful way.

Also consider the role of “syndrome evidence.” There is a large body of medical literature addressing  the various syndromes that can affect child witness recall (e.g., child sexual abuse accommodation syndrome, post-traumatic stress disorder, repressed memory syndrome, etc.).

Finally, be aware of your own preconceptions. Many people expect sexually abused children to cry and exhibit negative emotion when testifying about alleged abuse, and many adults tend to disbelieve child witnesses who do not emote in this way.  But research indicates that children commonly do not cry or express negative emotions when describing sexual abuse and there are a number logical of reasons for their unanimated testimony in general. For instance, children are often interviewed multiple times regarding the incident or they may simply not have perceived the event as negative. What’s more, the emotion expressed by testifying children could be a reaction to being interviewed by you – a perfect stranger –  and have little to do with the alleged incident itself.

Remember to give yourself plenty of time for the interview as children can take a while to get out their story but they will tell it and tell it truthfully.

BNI Operatives: Situationally aware.

As always, be safe.

Is The Witness Lying To You? Reading & Responding To Body Language.

two faced woman

Our body language tells us more than we realize about our motives, our desires, and our true feelings.   The nonverbal tips that our bodies project are keys to our true thoughts.  

Whether you are a private investigator meeting a potential witness for the first time and obtaining a statement from her or a trial lawyer in court questioning a witness, the main issue is not having a baseline of the witness’ normal behavior.  I’m very good at detecting when my friends and family are not telling the truth. Why? I know them. I know their mannerisms, vocal intonation and speech patterns.

Lie detection, although far from being an exact science, has come a long way over the past several years. The problem is that many of the ways liars reveal themselves are not easily identifiable in a court room setting. For example, polygraphs work because most people have a physiological response to lying. It is difficult, however, to know that a person’s heart rate has increased or his hands have begun to sweat from looking at him across the court room. Pupil dilation is also a potential indicator of dishonesty, but if you are close enough to see a change in the witness’ pupils, you are surely invading that witness’s personal space and that is generally not a good move.  So in an experimental setting (i.e., research laboratory with polygraph machines) it may be possible to identify deceit from a physiological change. During a deposition, however, those methods are not a viable option.

So what other options are there?Several possible predictors of deception (outside of a laboratory setting) are:

  1. Voice pitch.  Even during little white lies, the pitch of the voice goes higher.  The greater the lie, the higher the pitch is a general rule of thumb we observe in the field.
  2. Rate of speech.  People tend to talk more when they are lying because they feel the need to convince the questioner and believe by including as many (albeit, fictional) details as possible, that they are providing a lot of information.  More is not always better.

The problem with relying on these two reactions however is that some people talk that way all of the time so you have to have a baseline for comparison before you can conclude that the witness is lying to you.    If you believe that a witness is lying to you in a courtroom because of the rapidity of her speech, what do you have to compare that to to make a determination of deceit? Therefore, if you suspect a witness is lying about a particular portion of her testimony, you should stop asking questions about it. Move on to another line of questioning to see if her demeanor relaxes. Then return to the original subject to see if she gets anxious again. This will help you determine if the witness is nervous about that particular line of questioning or just nervous in general.

The single best predictor of lying however is the quick, unconscious movement made by the person lying.  I.e., that the person is saying yes but shaking her head, indicating “no”.  Lie detection experts have reviewed countless videos of when a statement was made that was later found to be a lie, (e.g., President Clinton denying a relationship with Monica Lewinski; Alex Rodriguez denying the use of steroids in his interview with Katie Couric).  The person’s head movement was a consistent predictor of deception.  Therefore, if you suspect a witness is lying or not being wholly truthful during a particular aspect of her deposition, pay close attention to the movement of her head as she answers. Additionally, look for general inconsistencies in behavior. Does her body language match what she is saying? If you have a bad feeling about a witness, don’t ignore your instinct.

Basically, time is your friend during a deposition in establishing a baseline – as slim as it may be, it’s better than nothing.  If certain questions make the witness skittish, drop that line of inquiry quickly and when she least expects it, wrap right back to that particular point in her testimony.  Practice with your staff and you will be amazed at the accuracy rate of your instincts. (For obvious reasons and to lessen the turnover rate of employees, however, you may want to rethink that suggestion…)

BNI Operatives: Situationally aware.

As always, stay safe.

 

 

Interviewing Witnesses By Personality Type: Part I: The Narcissist.

narcissist

Our obvious objective in interviewing witnesses is to obtain a statement.  To that end, a successful interview is often based on the investigator’s approach and the better she can assess the subject’s personality, the more effective the interview. Fortunately, most people are cooperative, fairly truthful and possess a normal personality.  There have been quite a number of times, however, when we’ve had to extract information from people whose base nature or personality has been overwhelmingly outside of the normal range.

With these type subjects, it’s the investigator’s people skills that determine whether she will prevail.

In our multiple-part series, we begin this week with tips for interviewing a subject with a narcissistic personality. Because of their compulsive, detail-oriented personality bent, narcissists can actually make very good witnesses – if you know how to handle them.

Definition of a Narcissistic Personality:

Most experts use the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association, to diagnose mental conditions and personalities.

DSM-5 criteria for a narcissistic personality include these features:

  • Having an exaggerated sense of self-importance
  • Expecting to be recognized as superior even without achievements that warrant it
  • Exaggerating your achievements and talents
  • Being preoccupied with fantasies about success, power, brilliance, beauty or the perfect mate
  • Believing that you are superior and can only be understood by or associate with equally special people
  • Requiring constant admiration
  • Having a sense of entitlement
  • Expecting special favors and unquestioning compliance with your expectations
  • Taking advantage of others to get what you want
  • Having an inability or unwillingness to recognize the needs and feelings of others

Description of a Narcissist (from Psychology Today):

Narcissism is often interpreted in popular culture as a person who’s in love with him or herself. It is more accurate to characterize the pathological narcissist as someone who’s in love with an idealized self-image, which they project in order to avoid feeling (and being seen as) the real, disenfranchised, wounded self.

Having the above knowledge, a field investigator should be able to quickly pick up on the subject’s personality during the pre-interview casual conversation we engage in with witnesses to determine where they are “coming from”.

If the investigator has ascertained that she is dealing with a narcissist, the three best basic approaches are:

  1. Provide positive feedback throughout the interview without being disingenuous and overly solicitous.  A narcissist needs to be constantly recognized but, is also suspicious of people who are being nice.
  2. Base the account from the narcissist’s perspective.  As with most people, but more so with a narcissist, people recall best when mentally positioned (though guided imagery) to recall an event from where they were at the moment of occurrence.
  3. Let the subject talk.  Sooner or later, with mild steering, the narcissist, because of the compulsive component of this specific personality, will give you the information necessary to complete a thorough statement.  By his very narcissistic nature, he is exacting with details.  Also, we’ve found that engaging a narcissist in minor physical tasks (such as drawing a diagram of the location of accident or arranging site photos) during interviews, helps defuse excess energy and OCD like behavior.

In the next Bulletin in this series, we will cover, “The Empath” – Does she give a true account of the incident or is she wrapped in the emotion of the moment, clouding her recall?

BNI Operatives: Situationally aware.

As always, stay safe.

Can’t Find Your Client? A Witness? or the Defect?? 5 Proactive Steps to Avoid These Problems

lost and found

Every attorney has his/her own intake survey (generally varying by incident type) and method of working a case.  Below are several situations that our investigators have experienced in the field, and recommendations based on these incidents.  We hope these observations serve a proactive purpose in case management as it applies to clients, witnesses and evidence.

1. Your client’s emergency contacts.

Situation: On numerous occasions we’ve had to locate a client who has moved without notifying his/her attorney.

Recommendation:  Obtain the complete contact information of at least 2 relatives and 2 friends NOT living with the client.  (Drilling deeper,  obtain the DOBs of the emergency contacts.  This may appear to be a rather aggressive suggestion but,  at least 2 of these 4 contacts should be 25 – 59 years old.  Generally, adults within this age range are employed and therefore, more easily trackable than those younger or retired.  Obtain an email address as these are often traceable. )

 

2.  The witnesses.

Situation: I’m sure you’ve all seen a PAR (Police Accident Report) w/a witness listed as “Johnny, 917-555-1234”. (or same, similarly incomplete police report).   No address, no surname and a cell phone that may or may not be active in 2 weeks, let alone 2 years.

Recommendation(s):  1. Call “Johnny” immediately.  Obviously,  the first objective is to determine his knowledge of events regarding your client’s matter.  2. Obtain his contact information and an identifier.  (Again we suggest DOB.  Many people are reluctant to release their SSN.)  3. Obtain an emergency contact for him.   4.  Check the contact info every 6  months until the case achieves resolution.

 

3. Professional photographs of the accident scene, especially if citing defect or disrepair. 

Situation:   Several years ago, we had an exterior premises  trip and fall situation wherein we were called to investigate the scene approximately 4 months post-incident.  The injured person made several natural and unintentional mistakes: 1. Not realizing the extent of his injuries, he did not call 911.  There were no on-site witnesses and no responder witnesses, and  2. When he returned a week or so later, after receiving medical attention, he’d taken photos of the accident scene but the shots contained shadows running across the defect rendering it difficult to determine the exact nature and severity of the  defect.   He was to go back and re-shoot the scene but did not.  4 months later, no defect, no repair record.  The building owner, of course <eye roll>, knew nothing.  Good luck with an area canvass among usually non-cooperative neighbors.

Recommendation: Send out a professional to photograph the accident scene ASAP.  Don’t expect the client to return and accurately record the scene.  Bear in mind, however, that the defect may have permanently “disappeared” and there may not always be a repair record.

From our good friend, http://www.stus.com:

 car accident

4.  If it seems weird; it probably is.  Check all possible contributory factors.

Situation:  Claimant fell UP the stairs.  She wasn’t carrying bags, wore flat shoes; no drugs or alcohol were involved.  No defects, liquids or debris on the ground.

Recommendation: Measure everything.  After taking detailed step and rail measurements, we realized that a) the steps were unequally sized – from the height between them to the protruding lip of each step (which was excessive at the point where she was caused to trip) and b) the rail would have been out of reach from her position regardless, with no secondary wall rail in place.   Rarely do people slip, trip or fall for no reason (unless there is an underlying medical condition).

 

5. Always check to see if drugs and alcohol were involved. (Defense)

Situation:  Building maintenance crew member claims to have fallen off of a defective ladder.  The ACR showed extremely high bp readings; 3 taken at 15 minute intervals by responding EMS – well above the readings that would be expected even in a  such a stressful situation.

Recommendation: Check the medical history.  The individual was on Lipitor and had not taken his medication as prescribed for several days preceding his fall.  (He’d also commented to several co-workers earlier on the day of incident that he was feeling “dizzy”.)  There was absolutely nothing wrong with the ladder, the area surrounding it, nor was he working at a height requiring specialized safety equipment.

BNI Operatives: Situationally aware.

As always, stay safe.

Locating People Who’ve Gone Off The Grid.

disappearing

Investigators are often asked to conduct subject locates. The usual paper trail: telephone records, address histories, voter registrations, professional licenses, civil and criminal court filings, Department of Motor Vehicle records, credit reporting agency records, Social Security data, etc., will, in a majority of cases, return with the subject’s current and valid contact information. But what do you do if the subject is simply not in the mainstream – for whatever reason: joblessness, homelessness or “on the run”? What then?

The success of a subject locate depends on several factors including the information provided to the investigator and the investigator’s own skills and tenacity.

We’ve put together a checklist for locating transient witnesses that has generally returned successful locates:

1. Check the name and SSN versus death records. (Don’t assume the subject is alive but definitely rule out that he isn’t.)

2. Scour social media for leads.  (We all know the drill at this point: Facebook, Instagram, etc.)

3. Interview family and friends. (Remember to request the date of  last known contact.)

4 . Upon developing a location start off point, check with local and adjoining police departments.  Electronically, check VineLink.com. (In their own words: VINELink is the online version of VINE (Victim Information and Notification Everyday), the National Victim Notification Network. This service allows crime victims to obtain timely and reliable information about criminal cases and the custody status of offenders 24 hours a day.)

5. Check with area hospitals and morgues.

6. Contact the local Salvation Army center and other charity organizations in the area.

7. If you are aware of the subject’s hobbies, (e.g., wine-tasting), scour the social groups, such as Meet-Up, for meeting events.  (We’ve backed up into subjects by identifying a particular interest and then contacting group members.)

8. Identify and canvass, if applicable,  local day worker locations and restaurant, bars and clubs – especially seasonal venues.

9. Recon area bus and train stations.

and finally, go the digital milkbox route:

10. Post a YouTube video, or Instagram picture of the subject, if family and or friends can provide reasonable current photos of the subject.  Add as many tags as you can to increase the chances of good hits.

Most importantly, though, when a case first enters a law firm, as much personal information , i.e., contact and emergency contact info should be obtained as possible. Our experience bears out that in the vast majority of situations,  someone “disappearing into thin air” is just a myth.

BNI Operatives: Situationally aware.

As always, be safe.

Subject Locates: Successful Searches v. Expensive Failures

One of the most common assignments we receive is for a subject locate.  Usually generated from attorneys, insurance companies, financial institutions (as, as you know, we do not work for individuals), we are often asked to locate:

– Adverse Witnesses

– Cooperative Witnesses

– Debtors

– Clients

– Heirs

– Etc.

The difference between a successful locate and an expensive failure is how much attention and care is given to a case.  Obvious, right?  But it has to be the right attention, which is a tight focus, and the proper care; to detail.

The starting point in a successful locate is to gather as much information from the originating requestor as possible:

Name: AKAs, Extensions (Jr., III, MD, Esq…), Maiden form, prior marriage form

Address: Last known contact date at this address, form of contact, (e.g. mail, phone… ), contact outcome, ( i.e. returned mail, no response, etc.).

Phone Number:  Last known phone number, cell, landline, Skype, other  VOIP (internet phone).

Personal identifiers: DOB, SSN, TIN, DL#, Medicare/caid recipient? School i.d.?

Contacts: Family, friends, employers, coworkers

Prior lawsuits: If known.  To include class of involvement (e.g., plaintiff, defendant, petitioner…)

Civil records: Is/was the subject married, divorced? Has s/he declared bankruptcy or have judgments, liens… against him/her?

Criminal records:  Almost every state now allows for an inmate lookup.  (If a person is missing for a considerable period of time, there are only so many scenarios, short of a bizarre abduction, to account for this disappearance: a move, death or incarceration.)

A good investigator will then form a profile of the missing subject and conduct an address history search which will generally yield a pattern.  (We’ll get to that in the next para.)  The address history may not contain the subject’s current address. (All databases, from DMVs to privately held, fee-based information companies operate within the limitations of data input regularity.  The subject may not release his/her most current address to an agency.  P.O. box registration is no assurance of a current address either.  If it is a planned moved, one simply has to apply and receive the P.O. box prior to moving and generate forwarding from the old address.)

Having created the profile, the investigator now looks for the pattern.  Is the subject constantly relocating?  Staying within a certain geographical area?  Is s/he beholden to a mortgage?   Has s/he foreclosed?  An address history search will also almost always reveal family member information.

Once the profile and pattern have been formed and detected, the investigator must decide on a course of action. The approach will determine if the locate will be successful.   Each investigator has his/her own technique but there is a different methodology applied between “friendly” locates and those involving people who’ve intentionally chosen to stay or go off the grid.   A sharp investigator will know how to entice a friendly subject and not tip off an adverse one.   That knowledge comes with experience and skill and a great deal of curiosity.

As a final step, an investigator may have to physically check an address to verify the subject’s address.  By arriving to this point, all other methods of locating have been exhausted but valuable knowledge on the  subject gained. (The location should be thoroughly researched before heading out to the field.  Showing up on a private road on 2 acres of land in the middle of nowhere is usually not going to result in a productive session.  Suggestion: Google Earth.  There should also be an established strategy to observe the location, discreetly,  within a restricted time span of when the subject’s presence is most anticipated.  If covert observation is not possible, the game plan must be thought out prior to, and include at least Plans A, B and C. )   Below; lack of a plan:

Finally, if your investigator returns with an address, ask that it be “verified”.  If there is  no confirmation that the subject is at the reported location, and the requestor is not made aware of the nonverification, a costly situation for the requestor may result, financially and with regard to negotiation stance.   If  the locate results are not verifiable, (and that occurs, although that number should be in the single digits, percentage-wise, in a competent investigator’s record), the requester will at least have that knowledge with which to make decisions.

Our operatives: A step ahead.

As always, stay safe.

Evaluating MVA Witnesses For Deposition/Trial

witness

This week’s guest contributor is Louis C. Amen, Det., NYPD (Ret.) .  (Detective Amen spent the majority of his NYPD career with the highly regarded Accident Investigation Squad [AIS],  Highway 3.   AIS is called onto an MVA site when there are participants in the vehicular event that are seriously injured and likely to die or fatalities are involved.)  

Evaluating Motor Vehicle Accident Witnesses (for depositions/trial) :

When interviewing a witness to an MVA for the purpose of assessing the strength and depth of her recall, an investigator is also evaluating her ability to “present well” under oath, whether at an EBT (Examination Before Trial) or the actual trial itself.  We’re taking stock of the witness’ ability to articulate well, be concise but thorough and firm in her testimony and whether she can remain focused under potentially grueling questioning.

Whether it’s in the relative immediate aftermath of an incident or five years later, it is important to know the following:

1. Witness’ perspective.

  • Was s/he in any of the vehicles involved in the MVA?
  • If not, determine exact location. (I.e., in other uninvolved vehicle in the vicinity,  position in that vehicle – a driver of an SUV may have  better line of sight to the incident than a rear seat passenger of a Honda Accord, or on the sidewalk or  crossing a roadway…)

2. Witness relationship to any involved parties (drivers, passengers, pedestrian,cyclist).

3. Has the witness tried to steer any of the involved parties to lawyers, doctors, investigators?

4. (Ask delicately.) Was the witness under the influence (including prescription drugs)?

The most effective method of obtaining a valid and comprehensive assessment of the witness is to, throughout the interview, put yourself in her position.  From a physical and psychological point of view.  Re-ask the important questions in this mode.  If the picture that the witness  is portraying isn’t coming together for the investigator, it won’t connect for the jurors.

louis amen suit

Louis C. Amen, Det., NYPD (Ret.)

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