Witness management in homicide or serious crime investigations Flashcards
Summary
Introduction
A major source of evidence in Police investigations comes from interviews with witnesses. Information provided by witnesses may enable investigators to discover the truth about the matter under investigation.
The relevance of information provided by a witness may not be realised at the outset, but may become more significant as the investigation unfolds. For these reasons, all those who come into contact with Police during an investigation should be regarded as potential witnesses.
A witness is any person who has information about an alleged offence or offender. They may be an eyewitness who was present at the incident or someone who can provide only peripheral information. They may be witnesses who require special consideration, eg. children, mentally impaired persons, foreign nationals or reluctant witnesses. Experts utilised by Police such as Pathologists and ESR staff are also witnesses and every witness needs to be managed appropriately to ensure their full potential to the investigation is realised. This process applies not only to the investigation stage, but through to the prosecution and beyond.
Principles
The manner in which potential witnesses are treated will significantly affect how they co‑operate with the investigation and any subsequent prosecution. The investigation management team are responsible for ensuring all investigators who are likely to have contact with witnesses understand the action expected of them and the necessity to interact professionally with every potential witness. Appropriate, considered methods of dealing with witnesses will facilitate the supply of information which will assist the investigation.
Each investigation has unique circumstances and the success of the witness management plan will depend on the OC Investigation establishing clear objectives relevant to those particular circumstances for managing the investigation and prosecution processes for witnesses.
Purpose
This chapter sets out the principles guiding the management of witnesses in a homicide or other serious crime investigation. It provides information and details procedures and guidance for:
identifying and locating witnesses
identifying the risks and needs of a witness to support effective decision-making in managing them
interviewing witnesses
ensuring on-going support and safety of witnesses
identifying the means by which the witness will give evidence at Court.
Collectively these considerations will enhance the quality of evidence provided by witnesses and increase the likelihood of their testimony being accepted as admissible evidence at Court.
This chapter does not provide guidance on investigative interviewing techniques, and must be read in conjunction with the Police Manual chapter ‘Investigative Interviewing Witness Guide’.
Identifying and locating homicide or serious crime witnesses
The informant
The significance of information provided by the person who reports the crime to Police cannot be understated. It is therefore essential the details of the informant are recorded fully and accurately. For further information regarding initial actions when dealing with an informant, refer to ‘Part 1 - Initial response to homicide or serious crime’, specifically ‘Complainants/Informants’.
Police who have first contact with the informant should be debriefed and a full record made of their account. This record could become crucial if the informant is later identified as a suspect. In some circumstances, consideration should be given to interviewing such officers as investigatively important witnesses.
Locating other witnesses
Locating witnesses is a critical aspect of any investigation and the relevant communities should be considered widely. Communities might include for example; cultural, religious, sporting, occupational, clubs, associations or societies. Advice from members of the community, who are not necessarily witnesses, should be sought to help identify the optimum means of identifying and gaining access to witnesses.
Having identified relevant communities, the OC Investigation should consider directing resources toward identifying witnesses within these settings. These methods may be utilised:
o Viewing CCTV
o Media releases and appeals
o Area canvass
o Interviews with victims and other witnesses
o Suspect interviews
o Anniversary appeals
o Road check points.
Depending on available resources, initial enquiries might be confined to certain areas, such as within line of sight and earshot of these locations:
o Place where the victim was last seen alive
o Place where initial contact with suspect took place
o Place where victim was assaulted
o Murder site
o Body deposition site.
Consideration may also be given to:
o initiating a witness search along the possible access and escape routes from each scene
o making enquiries at significant geographical locations proximate to the scene (eg., major foot routes, bus and railway stations).
For detailed information on identifying witnesses through area specific enquiries refer to ‘Part 9 - Area canvass enquiries in homicide or serious crime investigations’.
Witness as a scene
Some witnesses may have been so proximate to events that it is likely evidence was transferred to the witness, from the victim, suspect or from the scene itself. Before a witness is interviewed, a plan must be prepared to preserve and recover all available physical evidence from the witness including DNA, fingerprints, clothes, footwear, fibres, body fluids, glass or other material. For further information refer to ‘Part 1 - Initial response to homicide or serious crime’, specifically ‘Witness as a scene’.
Recordings
Where a witness has made a recording (audio, video or photograph) of an incident that is relevant to the investigation, on a mobile telephone or by any other means, efforts should be made to obtain informed consent from the witness to hand the device to police so the recording can be safely downloaded. Refer to the section ‘Passive Data Generators’.
Where the recording device is not immediately available, the witness should be advised to retain the recording and arrangements should be made for a suitably qualified technician to visit the witness to download the material at the earliest opportunity.
Where consent to handing over the device is refused, consideration should be given to whether sufficient grounds exist to support a warrantless search pursuant to the Search and Surveillance Act 2012, or an application for a search warrant to seize the recording as evidence.
Interviewing homicide and serious crime witnesses
Preliminary witness interviews
On some occasions it may be necessary to conduct a prompt, preliminary interview with a witness who possesses information or material that is likely to rapidly progress the investigation, ie. information that may lead to:
early identification or arrest of a suspect
recovery of evidence or information relevant to the offence
prevention of the imminent disposal or destruction of evidence connected to the investigation
prevention of the commission of other offences.
During preliminary witness interviews, care must be taken not to contaminate the witness’s recall of the events, as they will be formally interviewed at a later stage. The preliminary interview should be:
conducted in accordance with the Police Manual chapter ‘Investigative Interviewing Witness Guide’
limited to using appropriate open ‘TEDS’ questions ie. tell me, explain, describe, show, to establish sufficient information to immediately progress the enquiry
framed to elicit a brief account of the events witnessed, including where and when the event is alleged to have taken place and who was involved or present.
The investigator must consider the immediate needs of the witness who may require the presence of a suitable adult, or medical attention. The circumstances surrounding the preliminary interview should be recorded and permission obtained from medical staff if the witness is receiving medical attention.
Initial witness assessment
Before any formal interview is conducted, the investigator must make an assessment of the witness. The assessment should consider how the witness interview should be conducted, and enable the investigation team to identify:
whether due to the personal characteristics of the witness or the circumstances of the offending, the witness requires special consideration
availability of the witness
any needs the witness has for special assistance
the optimum approach to be taken with the witness.
Special consideration
Section 105 of the Evidence Act 2006 provides for witnesses who require special consideration, to give evidence in alternative ways. This includes the witness giving evidence from behind a screen, from an appropriate place outside the courtroom or giving evidence in chief by way of a video recording.
Where the OC Investigation determines that an alternative way of giving evidence would be beneficial for a particular witness, early liaison with the Crown Solicitor should occur. This will facilitate the Crown Solicitor to prepare a timely application for a judicial direction to allow the witness to give evidence in the requested alternative way. Such applications must be lodged at Court as soon as practicable.
Variations to the usual interviewing techniques may be required for any witnesses eligible for special consideration for example, video recording their interview. Particular consideration should be given to; investigatively important witnesses, family violence victims and any of the categories of persons specified in sections 103 and 105 Evidence Act 2006.
Appointment of an interviewer
The selection of an appropriate interviewer is an important first step in the development of a witness. These issues should be considered:
the level of training of the interviewer:
Interviews of adult witnesses who are considered investigatively important, should be conducted by an accredited level 3 specialist adult witness interviewer, or an accredited level 2 advanced interviewer where no level 3 interviewer is available.
Interviews of witnesses in serious and complex crime investigations, other than those considered investigatively important, should be conducted by an accredited Level 2 advanced interviewer.
A forensic child interviewer should be utilised for any interview of a child or any person suffering from an intellectual impairment. Refer the Police Manual chapters ‘Investigative interviewing witness guide’, ‘Child protection investigation policy and procedures’ and ‘People with mental impairments’
the experience the officer has in interviewing witnesses in major investigations and any additional skills the interviewer has which may be advantageous in the circumstances
the suitability of the officer to undertake the interview. This should include a consideration of any welfare issues and whether any previous experience that the officer has with the witness is likely to either inhibit or encourage a rapport with the interviewee, or give rise to later challenges of coaching, prompting or offering inducements.
Interviewing officers should be informed of their role at an early stage and given the opportunity to fully plan the interview. The first stage of planning should include a briefing with the OC Phase and continued liaison should be maintained between these staff throughout the process.
Phase OCs must ensure investigators assigned to undertake key interviews of significant witnesses are suitably qualified and experienced.
Witness interview plan
The nominated interviewing officer and their OC Phase should collectively develop and record a witness interview plan that takes into account all relevant factors, accords with the Police Manual chapter ‘Investigative Interviewing Doctrine’, section ‘Planning and preparation’, and be approved by the OC Investigation. The witness interview plan normally covers:
the time and location of the interview
the amount of information to be disclosed to the interviewer
setting interview objectives
supporting the interview, for example, employing an interview monitor
the structure of the interview, i.e. whether the interview will be recorded on video, audio, or written (this will depend on information established about the witness and the offence)
Risk assessment
A risk assessment must be conducted to establish the extent to which a witness might be at risk of intimidation and/or physical harm. Different forms of intimidation may result from a witness providing information to Police, ranging from fear of going to Court, to life being at serious risk. Intelligence personnel may be tasked to contribute to the assessment and consultation should take place between the OC Investigation and the Crown Solicitor where any witness is subject to intimidation.
Interview supervision
It is critical that where key witnesses are being interviewed, the interview is, where possible, monitored by a supervisor to ensure that all key points and legal issues are covered.
Debrief phase
Once the interview has been completed and then reviewed by the OC phase, the following issues can be assessed:
o debriefing the interviewers
o identifying any need for supplementary interviews
o the assessment of any risk to the witness and identification of any associated steps required to ensure their ongoing support and safety.
Supporting witnesses
Investigators must recognise the impact that being a witness to a crime or event can have on an individual. The witness may feel shocked, traumatised, vulnerable or intimidated by the experience. Adopting a calm reassuring approach and providing information about organisations that can provide support, will assist in alleviating anxiety and fear experienced by the witness.
For many witnesses the Court process and the giving of evidence is a daunting prospect. All witnesses will require a degree of support through the investigation stage and Court process, particularly as the lag time between the incident and subsequent trial may amount to two years or more.
Support should be tailored to the needs of the individual witness. In some cases, it may be sufficient for the investigator to explain Court procedures, provide verbal reassurance and keep the witness fully informed of what is expected from them and the dates and times that they are required. If witnesses understand the Court process and what will occur, they will be more relaxed and will likely make more effective and co-operative witnesses.
In other cases, third party support may be beneficial to some witnesses, provided that they are unconnected with the investigation. Additional support may be enlisted from family members, close friends, or from the services of dedicated agencies such as Victim Support, who have workers that are specifically trained to assist Police in homicide cases.
When a suspect is identified or arrested, if appropriate the witness should be informed and kept updated about Court appearances and whether remands are in custody or on bail. If on bail, witnesses may need to be made aware of bail conditions imposed.
For additional guidance, refer to ‘Looking after witnesses’ in the Criminal procedure - Trial stage chapter.
Financial support
Through Victim Support, the Government provides financial assistance on behalf of the Crown Solicitor for victims of serious crime towards the costs of dealing with the incident and attending Court and other criminal justice processes. This includes:
a discretionary grant of up to $1500 for families of homicide victims
free counselling for families of murder and manslaughter victims. Initially six hours are approved with the option to increase to 15 hours. Counselling up to a maximum of 30 hours may be approved if required.
ACC can help towards the costs of their burial, cremation and related ceremonies. Families of victims are able to claim a top-up to the existing ACC funeral grant where the death is confirmed as the result of murder or manslaughter and the maximum ACC funeral grant has already been claimed. A maximum permitted amount, including the maximum ACC funeral grant, may be claimed by families of homicide victims, or the actual cost of the funeral, whichever is the lesser amount.
For details of other avenues of financial assistance available to victims of crime, refer to the New Zealand Council of Victim Support Groups.
