Witness Interviews in Criminal Case Investigation

Let’s talk about approaching witnesses. And this didn’t matter, its family violence, domestic assault, the gang shooting out in front of the club Rio or whatever. You kind of get your mind right. You’re going to be Colombo here. You’re going to be talking to people. Now police have an inherent advantage. They’re the police! They’ve got a gun. They’ve got a badge. There’s little fear and respect that goes with that. When they come up, “I want to talk to you Mr. Milner”. Your heart usually beats a little faster and, they may not be dying to talk to him, but they will probably “woah” a little bit. There is this sense that they can make you stay and talk to them or if you’re rude or just want to shut the door, you might get into trouble.

The minute it comes out that you’re the criminal defense lawyer or the investigator for the criminal defense lawyer, especially if you got angry people on the other side, it might be good to have somebody else around but you want to be humble and meek and you need to get your mind right. But when you do get to approach them, you need to use some techniques you do in [inaudible] or just, general human contact. You need to make them feel important. Be a part, “yes I understand that”. Maintain your eye contact. “Well he killed so and so and I, I understand that you know, the court makes us do this and I just, tell me what you’re feeling” Just keep them talking, whatever you, keep them talking.

And be empathetic. Do not argue. Do not try to persuade. Listen, the more they talk, the more you can get something! And you never know what might fall out of their mouth. Appeal to the their sense of fairness; Well it wouldn’t be fair if I could… man I’m sure everything your telling is true and it wouldn’t be fair to not know ii. Would it? No! Well thank you. It wouldn’t be fair now to just talk to one side, would it? I just want to know the truth. I want to get to or throw this little curb. I want to get to the real truth. And sometimes an eye brow perk up,” what do you mean by that?” Well if you’ve seen the police report of what the office quotes you, “Never! No!” Well would you like to see? Here I’ve got a copy! And then just ask them about the circumstances of which their statements were taken. Where was it? When? What was their state of mind? “Well it was 3 in the morning and we’d been partying all night! We were strung out on speed and beer”

None of that’s in the report! Or,” they were threatening to take my kids if I didn’t talk to them or call in CPS right then”. That are not in the report. Might you want that in cross examination? Might that be favorable to the defense to learn how they talked to your, to this witness before that came out. You bet? Sometimes well you got to distance yourself from your client a little bit. I mean let’s face it, we have some people who as Mr. Goldstein says has,” an unfortunate similarity with the facts of the case.” So, especially with the crime of violence they [inaudible], “you represent that pervert?” “Yeah yeah, yeah I do” and then you didn’t shook it off, “Well you know, the Judge gave me this case, and…” you don’t want to say anything that necessarily might come out badly in cross. “Well you said he’s a sorry pervert, you just had to do your job”.[audience laughs] Don’t say that! But, you might do a little shuffle there. You’re just trying to get in the door. And talking to people though, you’re going to find there are about 4 kinds of witnesses out there in the world. Whether this is on a writ where you’re trying to, piece everything back together or it’s just that it’s that new case you got.

There are people who hold back, people who hold out, people who can’t hold back and people who are hold up! What am I talking about? People who hold back have trust issues. They know something but, they don’t want to talk to you. They have information which is X, and they, ”huh!” They don’t know. But you’ve got to get to the information. You’ve got to be patient, and you got to build trust. Maybe they think they’re going to get into trouble with the police, if they talk to you. Maybe they’re already oriented in one particular way. They, they really don’t want to be involved anymore. They want to go on with their life. They wished they didn’t ever, said anything. They wished they didn’t see anything. Or maybe they just think they’re not supposed to be talking to you! Or they’re about to, man like, “I’m a republican businessman. I don’t want to have to testify in any hearing!” But you know this guy is innocent! “Man, I’ve got my taxes to pay”. Oh, so sorry to bother you! You know, you got people who hold out. They’ve got attitude or an alignment. These are usually people, if you talk to EMTs; they think they’re junior cops. So we get, George is, you know intoxicated manslaughter case and you want to go talk to the EMTs…! EMTs and firemen are junior butthole buddies to most police officers.

At least, in terms of, or until they get their own DWIs family domestic violence case, which happens! But they have, you show up and especially, you get some 25 year old, can do 200 pushup kid you know, maybe he was in the core and maybe he wasn’t. And you tell him, “You know you’re here representing Jimmy Joe Dumbutt, who’s charged with intoxicated manslaughter” or so and so. And they just almost sneer and leer at you. Use the Judo, be great! But they don’t want to be involved, or they want something for it. Maybe there’s somebody who’s a little, skinny shady. And they’re out there in the street too, and they know about this case! But, yeah yeah, they know your client. They got a fact that could help him! Maybe that officer pulled over a bunch of people or maybe made remarks to other people later. But they think your clients also sitting on, you know, the financial reserves of 3 keys of crack! And unless he pays them some money, they are not testifying for him.

And they’ll approach you with it. Be careful! You don’t know if they have any information, but they are holding out on you. Then you have people who can’t hold it in. This is the gusher. This is Mrs. Mayella Sue Johnson, and she has told everybody at prayer group, at church, at the diabetes association [audience laughs], in the neighborhood, who made eye contact with her! All about her involvement with the biggest case in her life, since the kids graduated and went to high school. The great thing is, she will talk to you! Probably longer than you want to listen to her. And it may be completely favorable to your client. But the bad thing about a gusher is, they have gushed others. That is kind of like people telling stories,” yeah we was out on lake Kelabares and we went over this bump and we caught a bunch of croppy [inaudible]” “how many did you catch?”. “Oh 8 or 10 but we caught them in an hour”.

Two years later, it’s like, “the warden caught us with 20 over the limit”. You know the stories change. Ask a guy, everybody, well Louis Dickson was telling me last night,” Everybody’s, male is convinced of 2 things; that they missed out on a major league baseball career and they could have been an actor! You know, BUT FOR, you know there was that one thing, holding them back in life. Well, you know, ask a guy if he played high school football, if he was the water boy, he’ll tell you he ran for a thousand five hundred yards and “they had me to scholarship, to some school that don’t have a program anymore” you know blah blah blah. The gal will too! She will tell this story until she is the hero. It’s like one of those bad episodes of Three’s Company, which was pretty much all of them.

Where, they begin the program with something happening and then we listen to Janet’s version and Jack’s version and the landlord’s version, and all of them are hilariously different than the other. Well that’s what the Gusher will do. She will probably create at least 1 to 5 prior inconsistent statements to the one you get. And sometimes, they have a lot of emotion. Its Dear Aunt Sally! “oh I know he couldn’t have slept with that girl, when they were spending the night because so and so because he’s just a good…!” because what happened is, he may actually have good relevant factual information that helps you. But they’re so obviously on one side, that the jury is likely to discount their testimony. It’s kind of like when your client says; Oh I wasn’t there! Where were you? I was with my mamma! Oh great! You know, [speaker laughs] you know how that cross examine… You love your son, you do anything to help your son. You ought to help him. You know, Right! It’d be better if he’s in strip joint, throwing money at people, on camera!

Than home with momma! People who hold up. You read into this on Redsaurus as time goes by in cases, these are people who are, they’re hard to find! Especially if you’re doing court appointed work, these people are likely to be off the grid. They don’t have a credit rating. They don’t have a credit card. They don’t leave a forward addressing. They’re two steps patch of road! [inaudible] They are trying to get by, in life. And there may be a critical witness, to this horrible double drug homicide, that it’s now capital. And that one little blonde gal who you need to find, who everybody talks about but only knows her nickname! She since relocated to Seattle.

And she’s dried out, and got her life together! And would really not admit. She used to trade it out for a line of speed about, daily! She probably liked not to re-live the hell that was her life from 15 to 25, now that she’s 35. And she sure doesn’t wants her boyfriend or new husband, or new neighbors to find out, she’s had a very different other life. Its not just women, it could be a guy! But you got to understand, this happens! Some of our clients come out of the underworld and get a new life and move on. Some of them are total thugs and have gone and created a drug kingdom in Miami. [Speaker laughs] And really don’t want to come forward! “Waldy Bodger?” “Who? I don’t know him.” He comes from Boston. First part is just finding them and that’s where those first 3 search engines can be really helpful! Remember with ladies, the last name can change on you.

If there’s a marriage, much more convenient with women, so you want the identifiers. Watch for inverted dates of birth. Just one day difference, a little thing, it may still be the same person. Professional license, nursing Boyds [inaudible], things that, transfer State to State. Check those professional license databases and you can keep things, things keep hop scotching! But let’s say you locate them and then you can break through the first barrier and actually talk to them and you get that golden moment; yes I was there. Yeah we’ve been shooting up. No I was lucid.

No, you know and this is the case where the first guy comes and says,” No the other guy shot him” because he was the one that did the shooting! You know they were both there and wanted to knock these people off. She knows who really did the shooting. Well now how do you maintain her through trial? Well what if they’re just really sketchy street folks? Well you’re going to put them up in your office for the next 8 months, waiting for trial! You know, “well I promised to be there!” Man they’re not be able to remember where they spent the night last night! So maintaining them through child is a challenge and you have to look at the value of the information they have for you right than some method of preserving it, and what it’s going to be like in the future.

Constantly assess your witness. Anything they say to you, as long as they’re talking to you, validate it! Say it back to them looping like,” Bob Hershawn teaches us in void dire. Look at them with their eyes. Be accepting with your body language. You may want a recorder or another person around when you go there. Have you seen your police statement? How did that officer make you feel? What did he say or communicate to you? How long did it take? Why? How long have you seen a witness statement that’s like 4 and half sentences, but it took 4 hours to get? Now you can read it in 0:26 seconds but it took 4 hrs to cobble this together. Might be some other information. Recording! You need to know your local law about concealed electronics and obvious electronics.

Obvious especially, if you disclose them it will never get you into trouble. Alibaba.com and good old BestBuy! You can get your stuff there for cheap; from 250 down to 60 bucks. You can get digital recorders with a good SD card. First you might want it for yourself, to keep somebody from running off to a DA alleged witness tampering. With what we just heard from Miss. Eder and all that! There will be an explosion. There will be a somebody somewhere, who is a prosecutor with a grand jury who gets all happy with witness intimidation or retaliation or all sorts of things like that. Well, just for your own law license sake, you might want to record that you did not offer this person a bribe, tell em to dodge a subpoena. Or threatened to do anything to them if they didn’t talk to you and testify to you in a certain way! At the same time, it may be nice to have some impeaching document, should they do a 180 on the stand, other than, “but you told me…!” which doesn’t do you any good! There’s another talk in another room that does a lot better a job at this, than I am. But cellphone triangulation! Can a person be, where they’re supposed to be or shouldn’t be. There’s a cell tower radius, so most of them, about 3 miles.

You can read about this if you, the duke lacrosse players if you remember that? There’s a real good book on them. That was the first time I even realized, this was a possibility! It turns out the lady who was the stripper, who was making the acquisition. One of the young men read Celligman could prove, by his cellphone records and messages in the cellphone tower, that he was 3 miles away from where this deal was supposed to have happened, when she said it was happened. So his cellphone records were his alibi. God how do know that kind of science existed! Well there’s another talk elsewhere, from a really sharp fellow who will tell you of that, a lot better than me. Text contents are available, just for a few days from the provider. But they’re forever on the phone they’re on until they are deleted. But you can print them and photocopy those. The calls! Actual calls, unless you’re the NSA, you can’t get the contents! [Audience laughs] But the length, the date, the time and the tower are kept like 9 months to a year, depending on whether; like AT&T keeps them a year, Spring Horizon about 9 months. So, if you get your case early enough and you get your subpoena, early enough, you might be able to get those, but you need to know the number or the number provider.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez