Interview Do’s and Don’ts
Working as an investigator for almost 20 years has given us the opportunity to interview and then interrogate countless individuals in both civil and criminal proceedings. Our trained interviewers have knowledge of the psychology of interviewing, have learned practical techniques to draw on in interviews, and have had the opportunity for substantial practice. Below are a number of interview “Do’s and Don’ts” that we follow:
1) Respect: Always conduct witness interviews in a way that is respectful of the interviewee. Using anything other than courteous dialogue – even when pointing out any discrepancies or falsehoods – will only produce lies and attempts at cover-up. The high number of false confessions and erroneous intelligence produced by criminal investigators or military “interrogators” who use threatening and confrontational approaches prove the effectiveness of a more respectful approach. Investigators should never make threats or promises or use coercive and oppressive tactics but should attempt to be open-minded, tolerant and impartial.
2) Truthfulness: The investigator must, in most cases, be truthful about the reason for the interview. A pretext is only appropriate in very limited situations, such as in insurance fraud investigations. One of the most important reasons for the telling truth – in addition to the fact that truthfulness on the investigator’s part may help engender truthfulness on the witness’ part – is that the witness may be called to testify in a civil or criminal proceeding in which the circumstances surrounding the interview will be disclosed. A pretext will only show that the investigator lied, and an opposing attorney may rightfully argue that the witness’ answer may have been different were they to have known the truth about the inquiry.
3) Rapport: Developing rapport with the witness is vital to the process. Establishing good rapport helps the witness open up and allows the investigator to gently probe for bias or hidden agendas in the witness’ characterization of events. Witnesses are much more likely to provide information when they are being treated in a friendly manner rather than if they feel as though they are being interrogated.
Also, frequently the investigator will be called upon to facilitate the witness’ appearance at deposition and subsequently at trial, and a good relationship with the witness will aid the investigator in that task.
Establishing good rapport is something that a good investigator knows how to do both instinctively and from experience:
- Make a good first impression on the interviewee. When first contacting a witness, be friendly yet professional. Show the witness identification and a business card.
- To help the witness relax and feel secure ask him or her some general friendly questions before any questioning about the subject matter of the interview begins. Show an interest in the witness and the witness’ family, house, occupation and employer, hobbies, etc.
- Never patronize or talk down to the witness.
- Be willing to share occasional personal information in order to develop more trust.
- If the witness was a close friend of either a fatality, someone severely injured, or saw the incident occur, then a great deal of compassion for the witness and care for their well-being is necessary. If it becomes very difficult for the witness to tell the story, it is better to stop and put off the rest of the interview until a later date.
- Praise the interviewee’s efforts at remembering details.
- Always be friendly, patient and supportive.
- Use eye contact in most situations, but be mindful that in some cultures prolonged eye contact should be avoided.
4) Open-ended questions: ALL questions in an interview must be open-ended ones, crafted to allow as much information to pour forth from the witness as possible. Asking questions that can be answered with a “Yes” or “No” simply stops the conversation and doesn’t help the investigator discover what the witness actually knows. An indirect, conversational method of questioning lets the witness talk freely about his or her observations.
“Yes” and “No” questions are useful in legal proceedings in court or in a deposition in order to help an attorney establish the argument or theme that will be presented to a judge or jury, but they don’t elicit the knowledge the witness has, which is the goal of the initial witness interview.
5) Listening without interruption: Listen to what the witness has to say without interruption. Use pauses and silence if necessary to encourage the witness to do the talking and provide information in his or her own words. If the witness stops talking before finishing the story, use encouraging statements like “I really appreciate this information, but was that when the car pulled away? What happened next?” “What happened next?” is a very powerful open-ended question to use to prompt the witness to continue the story. NEVER complete a witness’ spoken comment. If interviewing a person who speaks very slowly or who frequently has to search for words, there is a temptation to “help” them by suggesting the word. Although ending other people’s sentences is frequently done in conversations between family and friends, it is totally inappropriate in a witness interview and must be avoided at all times.
6) Follow-up questions: Listening carefully also leads to asking follow-up questions that may elicit important information. Follow-up questions include memory jogs for names – common/uncommon, length, first letter etc; memory jogs for person information – appearance, clothing, characteristics etc. A first attempt at recall by a witness usually reveals broad outlines but little detail. A lack of interruption by the interviewer, and questions that bring out the detail and help jog the memory will make the interview more successful.
7) No leading questions: Never ask a question that contains in it an element of the answer that the investigator may wish to establish. This can forever contaminate the witness’ response. Interviewers need to be aware that interviewees are vulnerable to a range of suggestive techniques that can affect their recall.
8) Location: The most productive interviews are generally conducted in the witness’ environment, at home most often or, if need be, at work. This produces a more relaxed state of mind and the witness is generally less defensive. It also allows the investigator to get a sense of the witness’ background from items that are seen in the home or workspace. Conversation tends to take place most comfortably at a ninety-degree angle. Sitting face-to-face can be too confrontational. If there are distractions, such as a television playing, ask the witness if they will turn it off or if you can move to another room.
9) Preparation: Preparation is critical to a successful witness interview. The investigator should develop thorough background information on the witness prior to an interview and familiarize him or her self with the information. Also, in a criminal defense case or a civil case in which the witness may have already been deposed or has given a statement to another investigator or police officer, the investigator should not interview that witness until the statement(s) has been obtained and reviewed.
The investigator should develop a list of general questions and specific questions (always open-ended ones!) that should be asked during the interview.
10) Recording and note taking: Record the witness interview whenever possible. Explain to the witness that you record interviews so they are accurate and, after transcribing the recording, we will show him or her the transcription. At that time, he or she can review and sign the statement if it accurately reflects what was said in the interview. Even when a recorder is running, it is a good idea for the investigator to take detailed notes if the witness doesn’t feel intimidated or agitated by the note taking. The notes will not only help if there is any difficulty deciphering parts of the recording, but taking notes can help the investigator review the interview before leaving and ask any necessary follow-up questions.
11) Take your time: Don’t rush the interview. Make sure the witness knows ahead of time about how long it may take. Experience has shown that no matter how long you think it will take, interviewing will always take longer.
12) Inconsistencies: If the responses of the witness to questions by the investigator are inconsistent with information that the investigator has from other sources – such as a statement given to police or testimony of other witnesses – ask the witness about those inconsistencies in a subtle way or, depending upon the rapport established with the witness, call them on it directly and ask them to explain the discrepancy. There are statements that the investigator can make which will allow the witness to cop to having made a previous false statement. Some of these are, “You know, everyone in the beginning of these cases wants their (friend, relative, co-worker) to have the benefit of the doubt, and it may be that you overstated or understated the facts. This happens all the time and it’s no big deal.” Or, “you know, in your initial statement you said you didn’t know anything and now you are saying you know lots of things, is that because you were embarrassed to tell the truth the first time?”
In confronting a witness on inconsistencies, however, make sure the exchange is not adversarial. Remember that this is an initial interview, not an interrogation.
13) Nonverbal behavior: The investigator should also be aware of the witness’ nonverbal behavior and notice changes in his or her speech patterns throughout the interview. If the witness appears ill at ease or displays variable speech patterns it can mean that he or she is not being truthful. Or it may mean it’s time to move to a new line of questioning or end the interview for the time being.
Nonverbal communication can also provide clues to such things as the following:
- bias and/or prejudice
- accuracy of recall
- interest or lack of interest in the interview
- truthfulness or lack of truthfulness
- sympathy and/or empathy towards the plaintiff, defendant and/or the victim.
Research has found that facial expression, voice tone, silence, body positioning, eye movements, pauses in speech, and others aspects of body language and non-verbal communication all send messages. These may confirm, obscure, or contradict what is being said. There are some non-verbal behaviors that are typically associated with deception, but unless you have been trained in the detection of deception, it would be unwise to rely on these behaviors. People (including both interviewers and interviewees) often hold stereotypical views about non-verbal behavior that are incorrect. Thus, conclusions based solely on someone’s behavior in the interview room are not reliable.
14) Reluctant witnesses: There are many explanations for why witnesses and suspects may not be cooperative in interviews, including fear of: embarrassment, retaliation, loss to themselves, legal proceedings, harming someone else or self-disclosure. The investigator’s job is to find a good reason for the reluctant witness to disclose what they know. Careful, patient and empathetic questioning about the cause of the witness’ unwillingness to talk will provide clues about what might help motivate them to become cooperative.
15) Concluding the interview: When the interview is over it is important to close out the session properly. First, the interviewer should ask the witness if there is anything else he or she would like to add. This gives the witness a chance to convey something that has not been covered by the questions. It is common for a witness to have information that they did not provide in the investigation because no one asked them the right questions. Also, it is a good practice to review with the witness the notes that were taken to ensure the witness is aware of what was recorded and that there are no misunderstandings. Tell the witness what will be done with the notes and the recording. Also explain that it is not uncommon for witnesses to remember additional events or details after the initial interview (especially regarding the distant past, as in environmental investigations) and that you would like to check back with them in a week or so to see if they have remembered anything else.Finally, thank the witness for their time.
16) Interview impressions: Immediately after the interview, the investigator should make notes regarding his or her impression of the witness. The investigator should describe the conduct, demeanor, attitude, character and appearance of the witness. These impressions may help the investigator’s client ultimately determine if the witness is favorable or unfavorable to his or her case.
