How to Take a Witness Statement by TPenney

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									How to Take a Witness Statement

               LISTEN
                NOTE
            ENCOURAGE
              CLARIFY
    WHAT IS A STATEMENT?
“A signed statement is a detailed report or a
verbatim statement written in the first
person by someone who has knowledge of
an accident or occurrence”


“It is the adjuster’s absolute duty to take an
intangible, incoherent and spotty “report”
and without changing the contents or the
personal idiosyncrasies, convert it into a
legible written account which will be clearly
understood by even the dullest Judge”.
          Their words not yours
The aim of a statement is to set out in writing what
a witness to an incident observed. There is much
skill involved in taking down a witness’ statement.
The monitor must
• be sensitive to the witness’ feelings;
• take as much time as the witness needs;
• let the witness tell his/her own account without
suggesting answers; and
• ensure that the statement is sufficiently detailed.
    WHEN SHOULD STATEMENTS BE
             TAKEN?
• As soon as possible after the event

• In all cases where we intend to deny liability

  either in full or part

• In all serious incidents where our clients potential

  exposure is high
      It really close and formal
• A witness statement is a formal document
  containing your own account of the facts
  relating to issues arising in a dispute.
  Comments made in the statement should be
  limited to fact, and comments based on
  opinion should be kept to a minimum.
HOW TO OBTAIN A STATEMENT
•   Make sure the witness is there!
•   Get the witness on your side - put them at ease
•   Interview them one to one in a quiet environment                    office
                                                               Out of

•   If possible - assure them that they will have no financial, criminal
    or disciplinary exposure
•   Be flexible
•   Explain
•   Show an interest - do not be a know all
•   Above all - listen
            Factors To Consider
            Independence / Credibility
• Knowledge regarding internal dynamics
• Privilege
• Documents created during investigation
  should be scrutinized
• Potential disqualification in future litigation
  where supervisors conducts internal
  investigation
     A start and whole lot of middle
               and an end
• To write an effective witness statement, begin
  by identifying the particular case and party to
  which the witness relates in the topic. The
  opening paragraph should begin by explaining
  the details of the person making the witness
  statement and his/her or her involvement in
  the case. Finally, the body of the statement
  should outline the facts of the case.
It has body and logic
               Shut up and Listen
Confidentiality The witness must be assured of confidentiality
in all situations. The example involving workplace violence
underlines this importance. It is usually a matter of common
sense. It must be remembered that
• witnesses who make statements are vulnerable because
their evidence implicates others; and
• monitors are in a position of trust which they must respect
at all times. Cases are not to be related as a ‘good story’.
For the same reasons, it is important that the witness
understands the implications of giving his/her testimony and
the basis upon which s/he shares his/her information.
        Only four simple easy rules
• LISTEN
  Let the witness tell the whole story in his/her own way and time.
• NOTE
  Make a contemporaneous note of what the witness says.
• ENCOURAGE
  Do not interrupt this account (except for purposes of taking the
  note).
• CLARIFY
  When the witness has finished his/her account, go back over it and
  clarify points such as dates, times, places, identities, numbers,
  positions, ages, colours, shapes.
  The monitor has the responsibility of ensuring that the report is
  accurate, objective and factual.
•   How to listen
                                  Listen up
    • Start with open-ended questions, eg: Tell me what happened. . . .
    • Use door-opening questions, eg: Tell me more . . . and I hear you. .
    • Avoid door-closing statements, eg: You are wrong . . . or that was stupid. . . .
    Ways to listen
    • Maintain eye contact.
    • Nod the head.
    • Put yourself on equal terms. For example, do not stand over someone, or talk
    from behind a desk.
    • Focus on the speaker.
    • Avoid judgment or evaluation.
    • Make comforting/encouraging sounds.
    A good listener This is a person who
    • creates a supportive environment;
    • establishes trust; and
    • creates a sense of impartiality.
    FROM WHOM SHOULD STATEMENTS
            BE TAKEN?
         FOUR CATEGORIES


A Eye witnesses to the event

B Eye witnesses to events immediately before or after the accident

C Witnesses to background facts

D Negative witnesses

                          “Put your witness to the test”
WHAT TO INCLUDE AND EXCLUDE
    FROM A STATEMENT
RULES

• Statements are in the first person
• Use the witnesses own choice of words
• Keep the witness honest - include “bad” evidence as
  well as “good”
• Keep witnesses to the point
• No guesswork!
• No blame!
• Avoid profanity or derogatory remarks
• Make it legible
• Avoid hearsay
      ASSESSING YOUR WITNESS

• What is your witness like?

• Will they be able to give evidence in Court?

• Do you doubt their integrity or impartiality?
   Conducting Employee Interviews
• Interview Techniques Record objective
  observations, not conclusions
     • YES: “Blushed,” “raised voice,” “no eye contact”
     • NO: “Appears to be lying” or “evasive”
  – Do not make legal conclusions (that’s my job)
     • YES: “Inappropriate” or “unprofessional”
     • NO: “Harassment” or “discrimination”
  – Tape recorders are usually a bad idea, without both
    parties’ consent
  – Don’t discuss theories or speculation with interviewee
   Conducting Employee Interviews
Interview Techniques
  – Slow the interviewee down
  – Use direct quotes sparingly
  – If the interviewee reports something as rumor or
    speculation, note it as such
  – Avoid compound questions (K.I.S.S. Rule)
  – Easy questions first, hard questions later
  – Avoid legalese and legal jargon
  – Try to get a chronological explanation of events
  – Re-tell the story, and confirm chronology as necessary



                                                         17
   Dealing with 'unreliable' witnesses
Unfortunately, dishonest or evasive witnesses are quite a common
problem (for example 'mates' of the employee under investigation
who try to protect him/her) or situations where a single employee
lodges a complaint about more than one person.
• In cases where unreliability is blatant, you may decide it is simply
   not worth seeking a witness statement. However, you should
   record your decision not to do so, and be able to justify that
   decision objectively if you need to, without having to resort to
   opinions or assumptions. Where the person is a direct witness, it is
   probably better to take a statement but, instead, point out (as
   noted above) that the statement must not be false or misleading
   and the witness may be required to attest to its truth later on. You
   should of course mention that to ALL witnesses you are interviewing,
   not just those whose credibility you may doubt.
 Write it because we may need to use
                   it
• How to write a statement
  A statement is a formal document. It sets out the particulars of the
  person making it at the beginning, ie
   • name,
   • address, and
   • occupation
   before going on to state what the person wants to say.
   It is signed at the end of each page by the person making the
   statement.
   A statement is not evidence by itself. What the person saw or
   witnessed becomes evidence when that person appears, in person,
   and testifies in a court of law.
               chronological
• A witness statement should tell a party’s story
  and there are no strict rules defining their
  format. However, you should make sure you
  include all the facts of the case in a
  chronological order. Note that only important
  statements and which you know are true
  should be included together with an
  attachment of all supporting documents.
Interviews
vFollow organizational policy
vDetermine why subject was
 truthful
vDetermine who else involved
vKeep door open for future
 interview
vDocument, document, document
Interview Tips
vAlways treat subject with respect
 and dignity
vDo not hold subject against
 his/her will
vDo not offer immunity
vDo not make promises you can
 not keep
The proof is in the written message
•    Begin to tell the story The witness may be emotional. It is important to remain sympathetic and
     gentle while focusing on the need for clarity and accuracy.
     Again, let the witness tell the story in his/her own way and write it down, after all, this is how the
     person will recount it in a court or at an enquiry.
For example:
I saw a car speed up to Samuel. Some men jumped out and grabbed him and threw him into the back.
The car then sped off.
Go back over the story This is what the witness saw, but it lacks important details. By asking questions
of the witness they can be filled in. For example:
• Can you describe the car?
• Did you see the number plate?
• How did you know it was Samuel?
• Do you remember how many men got out of the car?
• Can you recall what they were wearing?
• Did you see any weapons?
• Would you be able to recognize them again?
• Do you remember which way the car went?
In this way the statement gives the type of detail necessary to prove a case:
                     The Key
A good witness statement ‘paints the picture’
• The effectiveness of a workplace investigation will
  largely hinge on the quality of the evidence gathered
  from the complainant and other witnesses.
• The evidence in a good witness statement supports
  or rebuts the complaint of wrongdoing
• A witness statement ‘locks in’ the person giving it
• Employee witnesses more readily realize the
  seriousness of a matter if what they are saying about
  it is being put in writing.
• A witness statement is a record for forever and a day
    Common Investigation Mistakes
• Taking the side of one of the parties involved
   – Remember to remain neutral
• Promising complete confidentiality to a party or
  witness
• Failing to properly document the investigation
• “Lazy” Investigators
   – Do not simply ask for written accounts of what
     happened.
   – Make the interviews interactive
• Failing to reach a conclusion

								
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