Notes on Tradecraft: Identifying and Interviewing People Relevant to Your Case
There are three steps to identifying potential witnesses whose testimony may be relevant to your client’s civil or criminal case. There also may be slightly more than three steps. Here are some of them:
Step 1: Police Reports
Read them. Police reports are a great starting point for identifying people who may know something you’d like to know. Bottom line: You’re likely going to have to talk to any witnesses the police interviewed anyway, so may as well start with the low-hanging fruit.
Step 2: Defendant
Talk to your defendant. They are often a wealth of information about the “incident in question” and a fantastic source for witnesses. Those witnesses may then point you to more people you need to interview.
Always talk to the defendant. Talk, then talk some more.
Step 3: Attorney
Talk to your attorney/client. They may have some ideas for who you need to interview. Sit in a room together, bounce ideas around, get clear on what information you’re looking for and how it fits into the overall strategy. Draw a flowchart on a whiteboard, or pin up photos attached with strings—whatever works to get everyone on the same page.
Interviewing witnesses shouldn’t be haphazard; it should be part of a master plan for finding the “good” and “bad” facts material to your case, and figuring out what to do with them. Time and money are never infinite, so you’ll need to perform a sort of triage on who the most important “gets” will be. Go see them first, then work your way down the list.
Step 3.2: Canvass
Canvass the neighborhood. Seriously, walk down the street where the “incident in question” happened. Go to the street where your defendant lives. Knock on doors. Talk to people. This seemingly lost art of Neighborhood Canvass can be a gold mine for identifying witnesses.
Step 3.3: Facebook
Check comment threads on Facebook, as well as all other social media outlets. People have opinions. People love to share those opinions. People seem to really love sharing those opinions on Facebook. Sometimes, people you’ve had a hard time finding may let you know where they are—by posting photos of themselves with geolocate-able data attached. Avoid giving in to the temptation to thank them for doing this.
Step 3.4: Media
What does the news have to say about the incident or the defendant? Read the news archive—anything you can find. Who did the reporters interview? Talk to them. They may have dug up information the police missed—or didn’t see fit to include in the discovery file. And they probably know a lot more than the stuff that made it into the stories.
One Last Thing:
Learn as much as you can about the witness before you turn up—including his actual whereabouts. Do you know what bites? Driving six hours to Shiner, Texas, only to learn that the witness hasn’t lived there since 1979.
Once you find him, the more you know about your witness and the case, the more streamlined your interview will be. You’ll be more likely to notice when certain details of his story diverge from other accounts. Plus, it may prove useful to know in advance, for example, that the person you’re planning to visit has been previously arrested for assault.
When making first contact with a witness, I find that it’s best not to call first. Saying “no” to you by phone is easier than turning you away once you’re already on the front porch. Show up and knock. I’ve had the best luck finding people at home, and willing to answer the door, on weekdays before 8:00pm.
If the witness opens the door without opening fire, then agrees to talk to you, congratulations! Use his time wisely, be courteous, and say “thank you.” If, however, the witness says “Get the hell off my porch,” do so. If he seems to be reaching for something as he says this (and has been previously arrested for assault), do so very quickly. Say “thank you” as you retreat.