GUIDELINES FOR INTERVIEWING WITNESSES

• Jurisdiction: Australia

Key elements which affect the outcome of investigative interviews ............ [65.500]

Timing of the interview .................................................................................. [65.510]

The relationship between the interviewer and interviewee .......................... [65.520]

Use of conversational rules or warnings ...................................................... 65.530]

The investigative interview framework.......................................................... [65.540]

The types of questions used ........................................................................ [65.550]

Use of cues and props .................................................................................. [65.560]

Methods of establishing witness credibility................................................... [65.570]

Interpretative assistance ............................................................................... [65.580]

Summary ....................................................................................................... [65.590]

[65.500] Key elements which affect the outcome of investigative interviews

Our review of eyewitness testimony now focuses solely on those influences which are amenable to control by the justice system. Here we refer to methods of eliciting witness evidence either at the time of the police investigation or at the trial. For example, a witness may be required to engage in interviews during the investigation process to help police establish whether a particular criminal offence was committed and (if so) how, when and by whom it occurred. If the case goes to trial, the witness may be invited to provide live evidence (evidence-in-chief and cross-examination). In cases where the offence was perpetrated by someone not previously known to the witness, that witness may be asked to take part in an identification test to assist investigators in establishing the identity of the culprit.

The witnesses' behaviour and responses during any of the abovementioned retrieval tasks can have a significant impact on the outcome of court proceedings. This is especially true in cases where there is little physical or other corroborative evidence to guide professionals and juries in making their decisions. A properly conducted investigative interview about child abuse, for example, affects the completeness and accuracy of the victim's examination-in-chief and the degree to which the victim's account is susceptible to distortion during cross-examination (Pipe et al (2013); Powell (2005); Saywitz, Lyon, and Goodman (2017)). Witnesses' behaviour when confronted with a police line-up can focus the investigation on the suspect and increase the likelihood of a prosecution being initiated and successful (Cutler and Penrod (1995); Smalarz and Wells (2015); Wright (2007)). Errors when identifying suspects can lead to real culprits going free and erroneous convictions. Indeed, the website of the US Innocence Project (2013) reports that mistaken identifications were important in the wrongful conviction of 72 per cent of the 311 DNA exoneration cases documented to August 2013.

In this section, we review the key elements that are known, or believed, to affect the outcome of investigative interviews with police or in-court interviews in front of a judge or other decision-maker. The next section focuses solely on suspect identification procedures. Our reviews have been written with the aim of assisting legal professionals in determining whether a witness's account of an offence or decision in an identification parade was elicited in a manner that best facilitated accurate and (in the case of interviewing) complete recall. As with the previous section, the elements we discuss relate to both children and adults. Where the findings are applicable to only one witness group, this is indicated in the text.

[65.510] Timing of the interview

As explained earlier in this chapter, memory of event details declines over time and, with the passing of time, there is increased opportunity for contamination of witnesses' accounts via exposure to potential misinformation about the event. It is for this reason that the timing of interviews is an important consideration, particularly the timing of the initial investigative interview. Ideally, an initial interview occurs as soon as possible after a disclosure or referral is made and before the witness has spoken in detail with other persons about the offence (Read and Connolly (2007)). Minimising delays in the elicitation of a witness statement is important for all witnesses, but particularly "vulnerable witnesses" (eg, children, persons with a cognitive impairment) and when witnesses are required to recall one or more occurrences of a repeated offence. The impact of delay is much greater in these situations (Brainerd and Reyna (1995); Powell, Roberts and Guadagno (2007)).

Many jurisdictions have acknowledged the need to elicit testimony as soon as possible from vulnerable witnesses. These jurisdictions have introduced the electronic recording of witness statements to police and the use of these statements for dual purposes: as a record of information that can assist in the investigation of abuse, as well as in an evidentiary capacity where the statement can be played as evidence-in-chief (Hoyano (2015); Hoyano and Keenan (2007)). Some jurisdictions have also adopted a pre-trial hearing model where the witness's whole evidence, including cross-examination and re-examination, is recorded pre-trial within a few months of the cases proceeding to prosecution. When the trial proper occurs, the entire evidence (the videotape of the investigative interview which took the place of evidence-in-chief, cross-examination and re-examination) is played to the jury instead of the witness having to attend the trial live many months later (Hoyano (2015); Hoyano and Keenan (2007)). While combining the investigative and evidential interviews preserves witnesses' statements at an early stage in the legal process, tensions can arise from combining these interviews because the purpose of an interview conducted early in an investigation is necessarily different in nature from an interview conducted for the purpose of direct examination. To maximise the scope of the information obtained so that investigative leads can be followed, interviewers encourage interviewees to recall everything that comes to mind, irrespective of whether it seems trivial, out of place or inconsistent (Fisher and Geiselman (1992); Milne and Bull (2002)). With child witnesses, however, a balance needs to be struck between obtaining sufficient information to proceed with an investigation and lay charges, while not pressing children to report minutiae and peripheral details about which they may be uncertain and on which they may be challenged later (Burrows and Powell (2014a)). In contrast to the investigative interview, the purpose of evidence-in-chief of a victim or prosecution witness is to yield a coherent, cogent and (where necessary) chronological narrative which complies with the rules of evidence, covers the criminal elements of each alleged offence, and provides particulars (Burrows and Powell (2014a); Davis, Hoyano, Keenan, Maitland and Morgan (1999)). Direct examination of witnesses, therefore, ideally occurs after the interviewer has developed a theory of the case, understands the necessary elements that are required to establish the prosecution case, and knows how the witness's testimony fits into the broader evidential pattern. The underlying tension that arises from combining investigative and evidentiary interviews has led some researchers to conclude that prosecutors should be allowed the latitude to supplement the pre-recorded evidence-in-chief with additional in-court questioning if required (Davis et al (1999); Powell and Wright (2009)). In this way, the relevant part, or the entirety, of the interview can be reconstructed in a more presentable form to serve the needs of the prosecution.

[65.520] The relationship between the interviewer and interviewee

Irrespective of the witness's age or willingness to cooperate in the interview process, the quality of that witness's testimony is likely to be maximised when the interviewer establishes a relationship at the outset that is conducive to good communication (eg, Blasbalg, Hershkowitz, Lamb, Karni-Visel and Ahern (2018); Vallano and Schreiber Compo (2015)). Good communication is facilitated when the witness's subjective experience of anxiety, fear or lack of confidence is minimised, because these factors impede effective engagement in the process (Powell and Cauchi (2013)). Being valued and respected is important for all witnesses, and is a common factor underpinning high levels of withdrawal of complaints by people who report offences perpetrated against them (Kelly, Lovett and Regan (2005); Lievore (2003)).

When describing how good rapport between the interviewer and interviewee is best established in the investigative interview situation, interviewers and legal professionals often emphasise the importance of personal characteristics (eg, the ability to show empathy, emotional support and belief in the witness's account (Wright and Powell (2006; 2007); Wright, Powell and Ridge (2007)). In contrast, eyewitness testimony researchers emphasise the importance of demonstrating a process of interaction that is considerate of the witness's physical, emotional and cognitive needs while demonstrating to the witness that his or her story will be heard, understood and not judged (Fisher and Geiselman (1992); Powell, Fisher and Wright (2005)).¹

The value of putting the witness into the role of a valued informant early in the interview process was well demonstrated by Sternberg et al (1997), who focused on the effect of various styles of rapport building with child witnesses. In each script, the interviewer encouraged the child to talk about an innocuous event such as...