In my 12-year career as an attorney, fulfilling the role as both prosecutor and defense attorney, I have been baffled by the number of attorneys who do not take the time to talk to witnesses—not just obvious ones, but ones you discover were never disclosed by police or prosecutors. This lackadaisical approach to discovery is a critical mistake because with witnesses lies the key to evidence that will be presented in your client’s favor. In many cases, it is the difference between guilt and innocence.
Not all witnesses are cooperative. Thus, steps must be taken to secure their testimony for trial. Under Montana law, a criminal defendant has the right to interview relevant witnesses. If the witness refuses to give an interview, the defendant can move for a deposition of that witness. Most witnesses agree to give an interview, but for trial purposes the attorney needs the interview to be audio/video recorded and transcribed. Most witnesses will agree to an audio-recorded interview, but when a witness does not agree and the attorney does not know this beforehand, the attorney may be stuck with an interview in which he cannot prove the witness’s statements at trial. The interview, in that case, may be somewhat worthless except insofar as it gives the attorney information to proceed with further discovery.
To make the most use of his interview, the attorney should have a protocol and procedure to ensure he can obtain a recorded interview of the witness and a transcript for trial. Below is an example of the practice procedures an attorney can take for this purpose.
Witness Interview Procedure in Criminal Cases
1) Identify witnesses to be interviewed, their address, and their phone numbers.
2) Contact witnesses and ask if they are willing to interview at our office (indicate above).
3) Ask witnesses if they have any conditions they would like to assert to give in an interview (e.g., wants the prosecutor present). If conditions imposed, take notes.
4) Ask witnesses if they agree to an audio or video recorded interview.
5) If witnesses do not agree to a recorded interview:
a) schedule a court reporter to be present at the interview; and
b) secure an investigator to be present
6) If witnesses agree to an interview, send a Notice of Interview at their confirmed address indicating date, time, location of interview and anticipated length of interview.
7) If witnesses do not agree to interview:
a) contact prosecutor to schedule interview; and
b) ask prosecutor to confirm whether the witnesses agree to the interview being recorded. If witnesses do not agree:
i) schedule a court reporter to be present at the interview; and
ii) secure an investigator to be present
8) Before interview:
a) calendar for defense attorney to prepare
b) check with attorney about documents needing to be copied for ID purposes in interview
c) confirm with court reporter (if one is needed) his/her presence at the interview
9) After interview:
a) have recording transcribed (if no court reporter present), or order transcription if court reporter present
b) give copy of transcription and recording to opposing counsel
c) Request the prosecutor and/or witness to review the transcript and sign for accuracy
d) File notice of name of investigator and court report to witness list for trial
Using a comprehensive procedure for procuring witness testimony is crucial to being a good attorney. It is not only good practice to interview witnesses, it is also the attorney’s duty. Without knowing what information witnesses have regarding the action at issue, the attorney is likely relying on what the opposing attorney is saying about the facts and issues of the case—and obviously the opposing attorney is not looking out for your client’s interest. Practice right: interview witnesses.