Area of Law: Services for Lawyers and Paralegals
Answer # 943
Witness statements, interviews and interrogationsRegion: Ontario Answer # 943
What is a witness statement?
A witness statement is an individual’s account of the facts and events of relevant issues that occurred in a dispute. Although a witness can give their statement orally or in writing, it must eventually be put into a written document and signed by the witness in order for it to be used as proof or evidence in a case.
Depending on the situation, witness statements can be obtained by different people, such as police officers, lawyers, or private investigators. In order to obtain witness statements, several techniques may be used by private investigators, including interviews and interrogation.
When is a witness statement used?
The key purpose of taking a statement from a witness is to ensure that an accurate record of the recollection of an event exists to both support someone’s claim, and to use as evidence in court.
Lawyers often hire private investigators to identify, locate and interview witnesses. If an individual reports a crime, the police may ask for a statement from that individual that details everything they can remember about the incident.
Witness statements are often used in court cases. The most common types of cases include:
- product liability,
- personal injury,
- small claims,
- intellectual property, and
- commercial litigation.
Who can be a witness?
Depending on the type of investigation, witnesses may include:
- former spouses
- business competitors
- business associates
- service providers
Interviews and interrogations
Difference between an interview and an interrogation
The purpose of an interview is to gather information, whereas an interrogation attempts to get a suspect to confess something.
Recording the interview or interrogation
An investigator is not legally permitted to record a conversation between two or more people unless they have the consent of at least one of the individuals involved, or if they are one of the parties to the conversation. Therefore, in the case where an investigator is interviewing someone, they would be considered to be one of the people in the conversation and would be permitted to record that conversation.
Interviews and interrogations of youth under the age of 18
If an investigator is interested in taking a statement from a young person under the age of 18, while not required by law, the investigator will generally contact the individual’s parents or legal guardians to obtain permission. In fact, it is standard industry practice for investigators to request that parents be present during such interviews.
Identify themselves as private investigators
Before conducting interviews or interrogations, investigators must identify themselves and show their private investigator licence.
1. Prepare in advance
Before conducting an interview, private investigators will:
- review the information they have already obtained,
- determine what further information they want to gather, and
- prepare questions in advance.
2. Record the interview
During an interview or interrogation, the investigator will take detailed notes, and will often make a digital recording.
3. Obtain signed statement
When the questioning is completed, the investigator will ask the witness to provide a signed statement. If the witness agrees, the investigator will prepare a written statement based on the investigator’s own notes and the information given by the witness.
This report may include:
- witness contact information
- witness employment information
- location where statement given
- date of interview, and time commenced and concluded
- name of investigator and company who took the statement
- an exact word for word transcription of the witness’s recollection of the events
The statement should also record that the witness gave the information of their own free will.
The witness will be given a copy of the statement to confirm that the information is correct and accurate, or to make any changes necessary. Once this is done, the witness will be asked to sign the statement.
Having a signed statement is important in the event it is needed in a court case. In particular:
(i) it provides protection against the witness attempting to change his or her story; and
(ii) in certain circumstances, a witness’s refusal to provide a written statement may be useful for cross examination at trial.
Once completed, an investigator will analyze the witness statement, and compare and contrast the information to identify any discrepancies.
Under Canada’s Charter of Rights and Freedoms, a person being interrogated has the following legal rights:
1. Right to counsel
Under section 10 of the Charter, an individual must be informed of their right to obtain legal counsel before an interrogation takes place. Prior to an accused being informed of their right to legal counsel, any statements they make are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.
2. Right to silence
Sections 7 and 11 of the Charter provide a recognized right to silence within the principles of fundamental justice. The accused may not be compelled as a witness against himself / herself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence.
Private investigation rules
In addition to the individual’s basic rights, when conducting an interrogation, private investigators must adhere to the following rules:
- stop questioning until the suspect has been given the chance to obtain legal counsel
- give the suspect enough time to get in touch with their lawyer or duty counsel
- let the suspect know about duty counsel or legal aid available to them and how to contact those services if desired
Use of deception to elicit a confession
Although private investigators must abide by the law when conducting interrogations, they are permitted to use legal deception techniques. If doing so, private investigators must understand the rules surrounding legal deception techniques. Using illegal deception techniques during an interrogation will result in the evidence being considered coercive and not admissible in court. For example, a private investigator can use props to make a suspect think that they have evidence. However, they cannot generate any incorrect or untrue evidence and show it to the suspect.
Of the many legal interrogation techniques available to private investigators, they must decide for themselves, which ones they find ethical.
Using a witness statement in court
All evidence, including witness statements taken through an interview or interrogation, must be collected and preserved so that it is admissible in court. Therefore, if the statement being taken can be considered a confession, it is important that no form of threat or promise of immunity be made. In Canada, according to the Ibrahim Rule (also known as the Confessions Rule), for a statement to be admissible in court, it must be given voluntarily, meaning the witness has not been coerced, and clear of duress.
Does the witness have to appear in court?
While an individual’s witness statement may be used in a court proceeding, the individual does not have to appear in court unless they have received a subpoena to appear as a witness.
However, if they do appear in court, there are rules that govern their appearance and the use of their witness statement as evidence. Under the Canada Evidence Act:
- a witness may be cross-examined as to previous statements that the witness made relative to the subject-matter,
- if the evidence is intended to contradict the witness, the witness’s attention must (before the contradictory proof can be given), be called to those parts of the statement that are to be used for the purpose of contradicting them, and
- the judge, at any time during the trial, may require the production of the statement, and use it for the purposes of the trial as the judge thinks fit.
Can an investigator be a witness at court?
Private investigators may also be called upon to testify in court in relation to a case they have dealt with. At court, they may be asked to recall specific details about the case, and, with the court’s permission, be permitted to refer to their notes. However, the investigator should not have to read directly from the notes. Clear and concise notes, reviewed before appearing in court, will help the investigator remember as many details about the situation as possible.
If you require an investigation or interrogation to be conducted for the purpose of obtaining witness statements, and for other investigation services, contact our preferred Investigators, Smith Investigation Agency .
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