This item first appeared on the F.A.C.T website on 18th April 2005
The following article written by Belinda Sinclair and published in the NEW LAW JOURNAL 3rd November 2000, Vol 150 No 6958 p 1617, has been brought to my notice.
YOUR WITNESS -- REALLY
The interview is crucial to most investigations. Whether under caution or to secure witness evidence, few would dispute that police interview techniques have developed beyond recognition over the past 15 years. The Police and Criminal Evidence Act forced investigators to rethink their approach and refine strategies for exploration.
But that application is not universal. While suspect interviews generally meet expected criteria, witness interviews often come a poor second. Maybe the absence of judicial parameters or the readiness of victims to assist reduces focus, but determination to unearth the full story behind an incident seems less strong with witnesses than suspects.
Before the PEACE model was introduced in the early 1990s, interview planning was rare. PEACE advocated rapport and invited interviewees to explain and account for action, rather than to merely respond to questions. Cognitive approaches encouraged subjects to regenerate the feelings, impressions and observations present at the time of an event to probe hidden memory. Its facilitation through conversation management exposed a wider range of material for investigation.
Although these tools have since been absorbed into police culture, many witnesses are still questioned rather than debriefed. This means that only responses are considered in the investigation, leaving a huge resource of potentially relevant and valuable material untouched. It happens particularly during investigation into more common offences, leaving defence practitioners with virgin territory with which to introduce reasonable doubt.
Police concentrate on covering points to prove but rarely use all of the information at their disposal. Instead of proving, re-proving and then proving a point again, prosecutors frequently adopt a "we've got enough" policy. Valuable witness input is thus missed.
A common approach is to consider information obtained from a particular witness and then compare other contributions to it. While comparison is useful in identifying gaps, it also narrows the perspective and can steer subsequent interviews. This is where inadvertent contamination creeps in.
Unlike interviews with suspects, conversations with witnesses are not recorded and are rarely conducted in the presence of a legal advisor. So how then, can you guarantee that the process was conducted objectively with the witness uninfluenced by the interviewer? A facial expression indicating an unhelpful response to a question, a comment paraphrased or omitted, clarification sought out of context, or weighted -- all subtle ways of conveying displeasure, encouragement or suggesting the witness revises the information.
Yes, of course it has to be edited and sifted for hearsay, irrelevance and inconsequential digression, but without supervision or accountability, how safe is it to assume utmost propriety?
This danger increases where rapport has been established. It is very difficult not to try and help somebody whom you like or who is obviously trying to help you -- even if that means leaping from a point of uncertainty and landing in unambiguous territory.
There is also a tendency to assume that police knowledge must be correct. Witnesses rarely challenge the prosecution viewpoint, perhaps for fear of appearing foolish, or not realising that even a small snippet can be crucial to an investigation. One particular case fell apart after weeks of work when a minor witness pointed out a mismatch between a day and date. A key witness had muddled the two and had inadvertently set the process off on a mystery tour.
Unlike suspects, witnesses are often consulted more than once; no time restrictions apply, so why not? Subsequent visits are made to check new information. But the practice can introduce yet more bias.
Consider meeting somebody for the first time without knowing anything of an incident. Relate that to meeting them after you have checked their background, heard from other witnesses or discovered something significant. Could you guarantee impartiality and objectivity? No, and nor can investigators. The bias might be unintentional but unless you ask a witness to break down when, where and how often points of evidence were discussed, how can you be sure that their statement reflects recall and not what they learned subsequently?
And what about learning points from case law? Their relevance is still not appreciated by police, even though the Intranet, an in-house Internet style database, offers pertinent material. While officers recognise the provisions of R v Turnbull and the ADVOKATE mnemonic in identification evidence, its application remains patchy.
Thus lessons from previous prosecutions are not observed; many of the same mistakes are repeated. Witness information is still not fully explored and safeguards derived from case law in respect of those interviews not conducted under the restrictions of PACE, fail to impact.
It is easy to assume police malpractice, but that requires effort and inclination. It is also time-consuming and dangerous. Unsafe evidence is far more likely to emanate from the restrictions of time, peer group pressure and lack of training to encourage skill development. Defence practitioners can turn that to their advantage but they still need to reassess their own practice. Rather than focusing on prosecution claims as targets to wobble, peripheral points are often better bets.
Police evidence may not be as thorough as assumed, so explore the full range of material. Conduct your own investigation before you focus on disproving what they identify as key points. Investigate the process of how witnesses were interviewed; ask them what they were told, how many investigators spoke to them, the relationship that developed, and any doubts or repercussions they discussed.
Ask them what they know about the case; it would be unrealistic to expect a witness not to have indulged some degree of curiosity and refrained from asking questions, but is their knowledge detailed? If so, it might just provide you with a basis to probe how much they gleaned while they were still providing information -- and how much they might have absorbed during that process but offered as their own evidence.
The prosecution is out to establish guilt and destroy innocence. Using the strongest points is fine, providing that all material is thoroughly examined. Selection of the most damming components for inclusion is all part of the legal gamble.
But if only portions of the material available for investigation are assessed, doubt arises. It implies secrecy; the withholding of snippets that could undermine the prosecution case. It falls to the defence to consider the full range independently, and not defer to suggestions imposed by police investigators.
NOTE: Belinda Sinclair is a former police officer, trained teacher and journalist. She used to teach legislation, procedure and evidence preparation to officers and civilians. She is now a freelance journalist