20 Trial Lawyer • Summer 2023 If you absolutely must interview witnesses yourself, the CDC relies on six principles4 to make interactions most effective with people experiencing traumas (like the trauma of talking to a lawyer!) Each of the principles represents the foundation of successful technique in witness interviewing, whether your witness is a sexual assault survivor, a truck driver or a brain surgeon. Safety and transparency If you are interviewing someone over the phone, set parameters for the call that create a framework of safety so the witness knows what is coming. If your client knows the witness, and they have a positive relationship, have the client make the connection to establish safety for the witness. If not, make sure the witness knows who you are and your relationship to them. For example, “Hi, I’m Meredith Holley, and I am a lawyer who represents [client]. I think you know [client]? I’m hoping to ask you some questions, and before we do because I’m a lawyer, I’d like to tell you a little about what it means to talk to me. Is that okay with you?” You might hate the idea of asking the witness if something is okay with them — after all, you could just subpoena them and they’d have to testify, right? But, if you get the witness to start saying “yes,” they will have the sense they are choosing to talk to you, which will make them more open to disclosing the entirety of what they know. It does not benefit you to alienate a witness, and getting active consent for the interview is an important safety step. Once the witness consents, make sure to accurately explain you are not that witness’s lawyer. Be transparent about what you can and cannot do for the witness. Don’t lie or over-promise. There is no benefit to that person being confused about your relationship to them. If they mistakenly believe you represent them when you do not, aside from potentially inviting an ethics complaint, this could lead to an experience of betrayal later that could impact their testimony. If they mistakenly believe they can share information with you that you will not repeat to your client, similar issues could come up. If you are interviewing a witness in person, safety is an even more tangible issue. Make sure the witness has access to an exit and that you do not block the exit. Especially if there is any additional cultural power difference between you and the witness above your status as a lawyer (for example, if you have any of these or other privileged characteristics: cisgender, heterosexual, white, male, able bodied, and your witness does not) it is especially important not to trap your witness in a room with no access to an exit. Dominant characteristics might play a part in whether the witness feels safe enough to disclose information to you. Witnesses, like other humans, need access to water, food, shelter, respectful communication and exits. If you trap a witness in a room and interrogate them, they may agree with you to appease you, but there is no telling what they will say after you release them from witness hostage. If your questions have the tendency to invade any levels of privacy like mental or physical health, family relationships, personal beliefs or other systems that people typically hold as sensitive, ask consent for your questions at each new level of intimacy. You don’t have to be annoying about it or apologetic, but simply saying, “Is it alright if I ask you about your conversations with your doctor?” gives the witness enough control to establish a certain amount of safety. Peer support and mutuality One of the most common rules many of us are used to hearing is to prevent witnesses from cross-contaminating each other’s testimony or losing their own viewpoint because they have heard the facts of a situation recited too many different ways. Investigation witnesses in employment cases are commonly, though in many cases illegally, instructed not to talk about their complaint during the course of an investigation. While I do not take issue with the importance of maintaining the integrity of a witness’s testimony, this concern can go too far. Often, one way for a witness to feel less disadvantaged or traumatized in an interview is to allow them to bring a support person. While that may create attorney-client privilege concerns with a client, because privilege does not apply to witnesses anyway, a support person can create the safety the witness needs to fully access their memory or opinion. Interviewing Techniques Continued from p 19 If you absolutely must interview witnesses yourself, the CDC relies on the six principles above to make interactions most effective with people experiencing traumas (like the trauma of talking to a lawyer!)
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