1. INTERVIEW TECHNIQUES PRESENTED BY DAVID B. MAC DOUGALL INFORMATION SERVICES, LLC. COLUMBIA, S.C. A Licensed South Carolina PI since 1979 South Carolina Association of Legal Investigators (SCALI) National Association of Legal Investigators (NALI) National Council of Investigative and Security Services (NCISS) South Carolina Public Defender Investigator Association

2. This presentation is the result of decades of extensive psychological, sociological and anthropological studies conducted by the brightest and best minds of all time.

3. Naaaa….not really… but it is the result of decades of trial and error INTERROGATE: Ask questions of someone, especially a suspect or prisoner, aggressively. INTERVIEW: A meeting of people face to face… Synonym: conversation

4. Who does the best interview?

5. Why would you conduct an interview if the police already did? Here is a quote from a North Carolina police investigator ”There’s a lot of investigative work you do that you don’t put on paper because you open yourself up to the defense bringing it up in court”.

6. WHY SHOULD ATTORNEYS NOT CONDUCT INTERVIEWS ALONE ?  Their time is more valuable  They can’t testify to impeach the witnesses

7. WHOWHATWHENWHEREHOWWHY

8. You’re looking for INFORMATION... Good, Bad or Indifferent

9. Just the Facts Ma’am, Just the Facts

10. WHO CAN YOU TALK WITH? CO-DEFENDANTS? ….a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer....a non-lawyer employed or retained by a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

11. INTERFERENCE WITH THE INTERVIEWEE Improper intimidation of a witness may violate a defendant's due process right to present his defense witnesses freely if the intimidation amounts to substantial government interference with a defense witness' free and unhampered choice to testify”. United States v. Saunders (1991)

12. The State v. Brad Edward Williams In 1997 the South Carolina Supreme Court reversed a murder conviction because an investigator for the solicitor's office called the defendant's attorney and told him that it would be improper to interview the witness and that “the Solicitor's Office would not allow the interview." Generally, courts have found unconstitutional intimidation where the government has advised a potential defense witness that it would not be in his "best interest" to talk to the defendant or his attorney.

13. But don’t worry about Brad…

14. PREPARING FOR THE INTERVIEW KKKKnow the case KKKKnow what your witness is supposed to know KKKKnow what questions you’re going to ask BBBBring accoutrements Interview forms Pictures Diagrams Reports Prior statements Tape & or video recorder

15. HOW ABOUT A SURREPTITIOUS RECORDING?? Probably not a good idea.... The South Carolina Supreme Court has said that a lawyer may not record any conversation without prior knowledge and consent of all parties.

16. THE INTERVIEW Do you call and make an appointment? As a rule…NO! Show up…unannounced…be polite Fully identify yourself with credentials Fully identify your representation Fully identify your purpose

17. Give them your business card Give them your business card Let them process all you’ve told them Let them process all you’ve told them Take accurate notes Take accurate notes Record when appropriate Record when appropriate Speak like a professional Speak like a professional Ingratiate yourself to the witness Avoid bling and other distractions Fresh breath Dress to impress – business attire

18. Who is going to be taken more seriously...

20. DON’T GIVE THEM TOO MANY WAYS OUT They can say NO but you don’t have to accept NO Don’t get angry; be persuasive. Appeal to their sense of fair play DON’T threaten or intimidate….it could be criminal Be conversational Get them talking, keep them talking and LISTEN

21. Obtain detailed information  Names including a/k/a’s  Date of birth  Social Security number  Close family member address  Family member phone number  Employer  Spouses name  Anything else?

22. What is the value of a “NON-STATEMENT - STATEMENT?”  LOCK ‘EM IN  LOCK ‘EM OUT  EXCITED UTTERANCE

23. Excited Utterances In South Carolina an “Excited Utterance” is, “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”.  The statement must relate to a startling event or condition;  The statement must have been made while the declarant was under the stress of the excitement;  The stress must have been caused by the startling event or condition.

24. SHOULD YOU MEMORIALIZE THE INTERVIEW?  Written?? If so… Who writes it? NCR forms  Audio recording  Video recording  Should the statement be sworn?  Give them a copy

25. THE INTERVIEW REPORT Does your client want a written report? If so remember the most important criteria... GET IT RIGHT! GET IT ACCURATE! GET IT 100% CORRECT! Review your final report with the interviewee Send interviewee a copy Retain ALL your notes and recordings

26. In your report include your observations In your report include your observations Any obvious prejudices Any religious artifacts Bumper stickers Will they make a good witness Do they speak English Will they be a credible witness Body language But it’s WRONG to judge…

27. WHICH WITNESS IS MORE BELIEVABLE?

28. GROOM YOUR WITNESS Answer their questions Prepare them for cross examination Allay their fear of what they will be asked Explain hearsay: “…a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ask about their background Meet and greet them at court

29. SOME RANDOM THOUGHTS  Do you pay a witness for video or photos?  Do you pay a witness for testimony?  Do you use intimidation?  It’s not cross examination  Don’t give away trial strategy to witnesses  Ask questions to which you know the answer

30. Thank you for your attention Go forth and investigate!