Witness Interviewing: How to deal with reluctant witnesses
As investigators we rely a lot on the information provided by witnesses. But sometimes they are reluctant to talk.
There are a variety of reasons that may cause a witness to be uncooperative such as:
Afraid of getting involved
Angry for being singled out
Guilty of something
Reluctant to inform on work colleagues or friends
Agitated about having to participate in an investigation
Worried about the potential for retaliation
Trying to find out the reason for why the witness is reluctant to talk is really the first step in managing these situations. Knowing the reason will point the investigator in the right direction as to potential ways the concerns of the witness can be resolved.
There is some school of thought that suggests investigators could offer a witness anonymity. However, this should only be considered in exceptional circumstances. From 2003-2004 I was involved with the Special Commission of Inquiry established to examine the circumstances that led to a multiple fatality rail accident South of Sydney near Waterfall NSW. The driver of a Tangara train suffered an incapacitating heart attack and the train eventually derailed on a 60 kph speed curve. One of the findings from the investigation was that the train guard failed to act in a timely manner to stop the train. In an effort to determine whether the actions of the train guard were symptomatic of wider cultural or organisational issues the Special Commission of inquiry offered people anonymity. While some were comfortable providing evidence to the Commissioner, others were less comfortable due to a fear of reprisal. The advantage of this approach adopted by the Special Commission was that a lot of information was collected, that might not have been otherwise, about the authority gradient culture that existed between train drivers and guards.
However, the downside of offering a witness anonymity is that the credibility of that witness may be called into question. It is also likely to place the employer or employee under investigation at a disadvantage as it is much harder to challenge evidence when it is given anonymously.
So the best course of action is to try to turn the witness around and encourage them to participate. A refusal to participate may occur because a witness either doesn’t want to be perceived as disloyal to work mates or because the witness truly fears retaliation. If the witness really doesn’t trust management, doesn’t like to participate, or is otherwise uncooperative and difficult, you need to explain to the witness that he or she has an obligation to participate. In other words, as an employee, one of the conditions (and expectations) of employment is that employees will assist in helping to identify workplace risks. A clearly articulated policy stating that all employees have a duty to participate in workplace investigations, can be helpful in this regard.
In my experience, I have found that there are generally three categories of witnesses:
Those that understand the need to and are willing to cooperate - the majority
Those that are reluctant to cooperate, but can usually be turned around - the minority;
Those that refuse to cooperate under any circumstances - the exception.
In regard to category 2 above; those people who are reluctant to some degree but can be persuaded to talk if you approach them the right way. Here are some suggestions to get reluctant witnesses to open up.
Make an effort to identify with the witness. I find that making an attempt to establish a personal connection goes a long way. When making initial small talk, try to find common ground but avoid flattery as this often comes across as false. I usually avoid the sport or politics of the day topics as a building rapport technique and focus more on finding out where the witness lives or originally comes from; as this is more personal. When in doubt, offer them a refreshment like coffee or tea.
Start off with the positive - Make sure that you stress in the introduction that you really appreciate their time in talking to you and that their assistance will help to establish what happened for the express purpose of preventing another similar incident. This demonstrates empathy with the witness and is evidence that you as the interviewer understand that sometimes it is hard for witnesses to come forward. This approach can also helps them feel part of the solution. Some potential introductory words might be; "I really appreciate the time you're giving me today and your help in making sure nobody else gets hurt in a similar incident".
Preparation is everything. Read all reports and documents about the incident, particularly any prior statements that the witness may have made. You might even do a quick check on any previous incident history through company safety or human resources representatives to get some insight into any prior issues. Gathering information and doing preparation is not done to try and catch your witness out, but more for the purpose of becoming knowledgeable about them and their situation. It lets them know you’re not going to waste their time.
There is no place for the 'bad cop' approach. Leave the good cop, bad cop routine to all the CSI like TV shows as this is not reality. If someone is reluctant to talk, try to find out why and show some empathy. It is important not to get into conflict with them about their reluctance but to simply clearly state that their decision is completely theirs, thereby providing them with a degree of influence and control over the process.
Be flexible. Work with the witness on the interview details. People usually are most comfortable in a setting familiar to them and at a time convenient to them. If possible, give them the option of where and when they’ll be interviewed.
To record or not to record. Signed or recorded statements are usually the best, but are the most difficult to obtain. Reluctant witnesses are least likely to talk with a tape recorder shoved in their face or when asked to sign something. Give them options. A thorough interview and good notes are far better than a rejection from the witness who won’t be recorded. Whatever method chosen, you should always ask permission to record or take notes.
Doing the right thing. Some witnesses need to be talked in to participating. Remind them that the interview is less about them, and more about improving safety or other like issues in the workplace.
Avoid the rapid fire 20 questions approach. A few well thought out open-ended questions is much better than receiving a lot of grunts to a series of yes or no questions. The art of interviewing is to listen. The number one impediment to any interview is whether the interviewer is not listening. So cutting witnesses off so you can move on to the next pre-arranged question will not encourage discussion.
Demonstrate active listening. Active listening is about watching your witness and paying attention. You can learn a lot from someone from their tone of voice, inflection, confidence level, conviction etc. You cannot do this effectively, if you are concentrating on taking copious notes. Use a scribe or electronic recording device so you can be more receptive to what and how things are being said.
Take what you can get. What if you cannot interview in person? This may be due to logistics or just reluctance for people to physically attend an interview. It is better to do the interview any way you can, then not do it at all. Therefore, even abbreviated. phone interviews are better than nothing.
If witnesses are having trouble articulating their story, get them to draw a diagram or picture. This will help establish points about direction, distance, access and location layout issues. A diagram provides points of reference that allow more detailed discussions.
Can you tell if a witness is lying? I often get asked this question when conducting witness interviewing techniques training. My response is always the same "As a psychologist with over 25 years experience in conducting interviews as part of major and minor event investigations, I am never confident that I can tell". The only certain way is if you have physical evidence to the contrary such as CCTV or motor vehicle data recorder devices etc. My view is to treat every witness fairly and on face value, unless the evidence suggests otherwise.
There are many reasons why witnesses may be reluctant to talk, but the task of an effective interviewer is to turn this reluctance in to cooperation via a non combative and empathic approach.
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ABOUT THE AUTHOR- Dr Graham Edkins (Business Development Manager)
Graham was involved with the original development and rollout of the ICAM process while representing Qantas as Head of Human Factors in the late 1990's. Nearly 20 years later Graham's belief in the practical utility and continual improvement of ICAM as a bespoke incident investigation analysis tool for any workplace has not wavered.
Graham's commitment to improving the quality of incident investigations for high-risk industries originally stemmed from safety investigation roles in rail, aviation and for the Commonwealth Government as a Transport Safety Investigator. This commitment continued during his time as the Rail Safety Regulator for Victoria and as a Senior Executive with the Civil Aviation Safety Authority. What these roles have taught Graham is that it's possible to develop error-tolerant systems through data driven but practical strategies.
In his role as Business Development Manager for Safety Wise, Graham is involved in the ongoing improvement of the ICAM product and driving the quality application of its use within client organisations. With a focus on delivering practical and sustainable results, Graham is highly sought after as an expert on safety behaviour change, error management and the proactive application of ICAM.