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Course in Fact Investigation
Cardozo Law School
Philip Segal, Esq. & Professor Peter Tillers
How to Interview a Witness
Peter Tillers Copyright 2011
Just as every investigation is different, every witness interview is (or ought to be) different: In every investigation, every witness interview has (or ought to have) different objectives. For example, in an exploratory phase of the investigation, an investigator might want to ask potential witness only a few and highly open-ended questions (e.g., "What happened? Did you see anything").
However, suppose the investigation is well advanced and the investigator is looking forward to a trial and is therefore trying to satisfy the requirements for success at trial. In that event, one of the possible principal objectives and strategies of the interviewer is clear: To extract all possible evidence from the interviewee that maximizes the interviewer's chances that he, she, or it will satisfy the requirements for success -- legal, factual, and other -- at the anticipated trial or hearing. To wit: Trial requirements cast a backward shadow on pretrial interviewing strategies.
The requirements for success at trial are in part cognitive: The chances of success depend in part on the force of the evidence and the arguments advanced for a (complex) set of of linked propositions. The interviewer should identify what those propositions are and attempt to get information from the witness that bolsters those propositions and arguments (or undermines the propositions and arguments favoring the opponent).
The two blog posts found below sketch out the requirements that the interviewer might need to keep clearly in mind when planning and conducting an interview of a witness. The first post briefly discusses the cognitive requirements for success at trial. The second post discusses how such requirements for trial success can affect interviewing strategy.
Friday, July 31, 2009
Planning for Trial Planning
The following, diagram or something like it should become the basis for the development of one part of the proof time line stack in MarshalPlan:
The rules of evidence could be linked to the questions and answers in the above chart (which might be put on cards in the proof time line stack of MarshalPlan. (But before that is done, I also need to develop a separate stack for rules of evidence. This should not be hard to do: I can use part of the legal rules stack as a template.)
N.B. by Tillers on September 1, 2011: If you study the above diagram carefully, you will see that it depicts several of the forms of evidence marshaling and argument that I say are included in the the notion of a "case theory."
Thursday, February 25, 2010
Trial Planning & Interview Planning
This leaves the question: What does planning for trial involve?
The answer: Many things.
But some of the things one must usually plan for are shown below:
In this trial plan the trial lawyer has struggled mightily to order the calling of the witnesses so that together they tell a story that begins at the beginning, moves to the middle, and ends at the end. As you can see, the lawyer has largely but not entirely succeeded. Such is life -- and such are the vagaries of the evidence that witnesses have in their heads and of the legal rules that govern the calling and re-calling of witness.
Now an interview is not an exact replica of a trial. Indeed, there are many differences between trials and pretrial interviews of witnesses. But the requirements of possible trials sometimes do and should cast a backward shadow on pretrial interviews. (Of course, one might wonder how a thing that does not yet exist and may never exist can cast a shadow on an earlier event. But that is a metaphysical question that I leave for another day.) So one might well decide -- and rationally and sensibly so -- that a pretrial interview should be designed in part to ferret out, if possible, evidence that would or might satisfy the requirements for victory at trial. One possible witness interview plan, thus, might look like this:
A different witness interview plan might look like this:
Of course, neither of the above interview plans is comprehensive. An interviewer might have and almost certainly will have interview objectives in addition to those sketched above. For example, a central objective might be to establish rapport with the witness. Another objective -- sometimes a key objective -- might be to explore the credibility or bias of the interviewee. Yet another objective might be to see if the witness' testimony presents certain themes that may arise during the testimony of other witnesses. And so on. But the multiplicity of the interviewer's objectives should not lead the interviewer to abandon all planning. To to do is usually fatal.
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