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.

Witness Statement Checklist; Motor Vehicle Accident (MVA)

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Witness statements are critical to just about every case a lawyer undertakes.   Among the many items that a thorough statement provides the attorney, the initial intake should contain verification of the incident occurrence, liability potential and causal factors.  For the purpose of being thorough, we have developed proprietary witness statement checklist for various types incidents – ranging from motor vehicle accidents (MVAs) to construction site accidents to elevator/escalator incidents and everything in between.  Below is a sample of our standard MVA witness statement checklist. (Of course, each incident is unique so the investigator taking the statement should be aware of all of the comments made by a witness, including those not listed on this checklist.)



This checklist contains items that must be addressed for a witness statement to be considered complete.  (One checklist per vehicle involved.)

1. WITNESS PEDIGREE (to include name, address, phone, DOB, SSN, employment/education and licensed driver info)

2. WEATHER CONDITIONS (including possible glare)


4. SURFACE CONDITIONS (roadways, shoulders…)


6. DESCRIPTION OF ROADWAY (# of lanes, travel direction, divider present…)








14. DAMAGE TO VEHICLE (detailed)










Our witness statement reports contain not only the witness statements themselves, but assessments of the witnesses interviewed (and the packet can be expanded to a full site survey which includes diagrams, 360-degree photos/video, 3-d modeling, if required. light sequences and full measurements).  The investigator is usually the first in the field, well before the attorney takes a witness’ deposition months from the date of occurrence, therefore, it is vital for the attorney, from the outset,  to have an indication of the witness’ recall, stability and ability to withstand examination.

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.

Interviewing A Hostile Witness: The Recorded Memo Statement.

hostile witness


The main purpose of a professional investigator is to gather facts.   One of the primary methods of fact-gathering is the witness statement. Statements may take various forms – affidavits, hand-written statements by the witnesses, statements written by investigators and signed by witnesses and recorded (audio and audio and visual) statements.

Regardless of the form, a statement has three primary purposes:

  1. SETTLEMENT — to develop information for a case for purposes of settlement;
  2. TESTIMONY PRESERVATION — to preserve the recollection of a witness; and
  3. CHALLENGE TESTIMONY — to document testimony and provide a recorded base line against which a potentially hostile witness might later be challenged on with regard to less than truthful testimony.

There are times when an investigator has to deal with an uncooperative or hostile witness.   An investigator must walk along a fine line when interviewing a hostile witness because if the statement isn’t comprehensive with regard to the crucial events of the case matter, the statement may potentially be useless.  Additionally, information contained within the statement may not be favorable to the client’s position.   A statement does more harm than good if it contains helpful information in one part and is then so potentially detrimental to the client’s position in another that it can not be introduced.   To deal with this situation, a seasoned investigator should know how to both investigate a case and simultaneously preserve the work product for use at settlement talks or trial later on.

While obtaining a recorded statement is the obvious objective, at times, with a hostile witness who refuses to provide such testimony, it becomes especially necessary for the investigator to record testimony.  Most professional investigators will use a method known as the “memo statement”.

How To Produce A Memo Statement:

  1. In any case, before interviewing a witness, review all pertinent police and agency reports, statement of facts from the attorney and any additional information provided or determined.  Know the basic facts before meeting with the witness.
  2. When you meet the witness, if s/he is unwilling to provide a recorded statement, advise them that you will be providing your client with a “Memo Statement”, in effect, confirming that you met with the witness, advised of the facts of the matter as you know them to be and will do so in the presence of the witness so that s/he has the opportunity to correct any statements you may make.
  3. Take out your recorder and use a similar script as this one:

Investigator Jane Smith: This will be a memo to attorney John Doe from Investigator Jane Smith dated March 1, 2016. The case name is Jim Brown vs. XYZ, LLC. The subject interviewed is Mike White.  On March 1, 2016, at approximately 5:45 p.m., I proceeded to the residence of Mr. Mike White and thereat spoke to Mr. White with regard to the above-referenced matter. I conducted an interview with Mr. White; however, he expressed his desire not to give a recorded statement. In the interest of accurately reporting the information Mr. White has provided me, I am dictating this memo in real time in his presence with his permission in the dining room of his home; is that correct, Mr. White?

White: Yes, that’s correct.

Smith: Mr. White advised that on January 1, 2016, at approximately 3:30 p.,m. he was stopped at the red light at the intersection of Scher Blvd. and Franklin Avenue in Franklin Square, NY.  He was traveling Westbound on Scher Blvd.   He was the first vehicle at the red light of this four lane roadway (2 lanes each, East and West Bound).  His vehicle is a 2014 Honda Accord 4-dr sedan.  He was the sole occupant of his vehicle.  Thereat, at that moment, he observed a dark colored SUV driven by a white female, approximately 25 years of age, traveling East Bound on Scher Blvd., pass through the red light and, at the center of the intersection, strike a light colored SUV lawfully traveling Northbound on Franklin Avenue.  Said female made no attempt to slow down or stop for the red light facing her or to avoid the light colored SUV being driven by a white male, approximately 50 years of age. Is my description of your observations correct, Mr. White?

White: Yes, that’s correct.”

Short, to the point and accurate.  Other information can be added such as a description of the weather and roadway conditions, position of the sun, that the witness had an unobstructed view of the intersection and the collision, whether there was construction occurring at that location at the time of occurrence, etc.

If the interview is going well, at some point the investigator should introduce an intentional error so that the subject can correct it for you during the live recording.

End the memo statement with a form of the following:

Smith: This is Jane Smith concluding my dictation concerning the above-referenced matter.  Mr. Mike White  has been present during the entire time that I dictated this memo. Is that correct, Mr. White?

White: Yes, that’s correct.

Smith: Mr. White, has everything I’ve said in this memo been accurate and true to the best of your knowledge?

White: Yes, that’s correct.

Smith: And in those statements in which I’ve mistakenly said something that you did not agree with and you corrected it; is that correct?

White: Yes, that’s correct.

Smith: Mr. White, is there anything that you would like for me to add or change in this memo?

White: No.

Smith: And your full name is…?

White: Michael Robert White.

Smith: This is Jane Smith concluding my dictation concerning the matter of Brown v. XYZ, LLC.

In some states, this method might not meet the legal requirements for consensual recording; however, in those cases, to possibly circumvent the exception, you might, at the end, ask the subject if he understood that his comments also were recorded on the tape.

At least in the case of a recorded Memo Statement, you are not leaving empty-handed if dealing with a hostile witness and are refused a written statement.  Also, this method more accurately documents the witness’ observations rather than a simple written statement that you would have produced.

Don’t take a “no” as the end-all when faced with an uncooperative witness without at least trying to obtain a Memo Statement.

BNI Operatives: Situationally aware.

As always, stay safe.

Interviewing Witnesses By Personality Type: Part II: The Empath.


(Continuing the series)

Last week, we stated:

“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, Part II, focused on interviewing an empathic witness.

Definition of an Empathic Personality: (The Mind

  • Feeling others emotions and taking them on as your own

  • Sensitive to violence, cruelty or tragedy

  • Creative

  • Addictive personality

  • Loves to daydream

Description of a Empathic Personality: (from Psychology Today):

“Empaths are highly sensitive and supportive. They are finely tuned instruments when it comes to emotions and tend to feel everything, sometimes to an extreme.”

Empaths unwillingly, unwittingly absorb, intuit and feel other people’s emotions — from joy to misery.”

Armed with the above knowledge, a field investigator, and having determined that the witness has an empathic personality, the best approaches to elicit a strong and credible statement are:

  1. The empath, prone to daydreaming, needs to be kept on track by sticking to the facts as points of reference. Empathic witnesses can keenly recall many details at once, overloading their sensitive natures.  It may take more time, and without coloring their recall, let the empath tell the story their way but keep them on track with facts.  I.e., keep them on a timeline track.  “The accident occurred at 12:30 p.m.  How long after the accident  did the police arrive?”  rather than “At what time did police show up at the accident scene?”
  2. Don’t lead (you can direct) an empath as they tend towards creativity.  “In which hand was the def. driver holding the cell phone?” is very different from the correct “Was the def. driver on her cell phone before or during the accident?”  The former may get the statement, “In her right hand.” which at trial may be expanded to, “In her right hand, after she pulled it out of her purse to call 911 after the accident.”
  3. Allow for emotional outbreaks.  An empath is more sensitive than normal and may process the pain and shock of the actual victim during recall.  Don;t sit there like a cold fish or rush her along.  While maintaining to the above suggestion to keep an empath on track by time reference points, an investigator is often surprised by the deluge of facts retained by empaths.  They are able to place themselves in the victim’s place at time/place of occurrence and observe the event through that prism.  Follow the facts through the emotions.

In the next Bulletin in this series, we will cover, “The A-Type”.  How to interview an alpha type who may be uncooperative.

BNI Operatives: Situationally aware.

As always, stay safe.

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




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:


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

  • Having an exaggerated sense of self-importance
  • Exaggerating your achievements and talents
  • 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

Description of a Narcissist (from Psychology Today):


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.

Evaluating MVA Witnesses For Deposition/Trial


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
