The reality of our life is such that, regardless of our will, we often witness a variety of events, incidents, and situations that we observe in everyday life. Sometimes these are pleasant events, such as the birth of a child, sometimes unpleasant ones, such as death. The same applies to certain incidents and life situations. Today you are a witness at a wedding, and tomorrow you are a witness in a criminal case, after a fight that took place at the same wedding. None of us is immune from acquiring the status of a witness in the criminal procedure sense. At the same time, many, having found themselves in the investigator’s office for questioning, do not know their rights, what they can and cannot do, how to behave correctly, and feel discomfort. Unfortunately, it sometimes happens that officials investigating certain crimes limit themselves to a formal and quick reading of the article of the Criminal Procedure Code, which mainly lists the duties of a witness and his responsibility in the event that he tries to mislead the investigation and gives false testimony. At the same time, many do not even bother to ask the person whether he understood the content of the article he read. After this formality, the interrogation begins, where they can sometimes unceremoniously inquire about both his personal life and its intimate details, often the investigator, irritated, not having received the necessary answer, repeats about the responsibility to which you will definitely be brought if you suddenly lie or tell something incorrectly. Many people who were interrogated as witnesses later said that they did not know that they could contact a lawyer and be interrogated in his presence. Taking this into account, it is difficult to overestimate the importance of Part 3 of Art. 78 of the Criminal Code of the Republic of Kazakhstan, which lists a whole list of witness rights, including the right of a witness to testify in the presence of his lawyer.
Like many of my colleagues – lawyers, I have repeatedly participated in similar investigative actions, where I defended the rights of my client, who has the procedural status of a witness in a criminal case. I would like to share my experience and knowledge, which may be useful to those witnesses who, for some reason, were interrogated without a lawyer. I will try to explain everything in an accessible, unambiguous and simple way, since this article is aimed at a wide audience and most likely, those who will read this article have nothing to do with jurisprudence.
So, let’s get to the point.
You received a summons or the police called you, informing you that you are being called for interrogation as a witness. At the same time, they appoint a specific time when you must appear for interrogation. The fact that you are working at the appointed time does not give you the right to ignore the investigator’s summons, since the presence of a subpoena exempts you from work during the interrogation. According to paragraph 1, part 4, article 78 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK), a witness is obliged to appear when summoned by the inquirer, investigator, prosecutor and court. And so, at the appointed time, you showed up at the police station. If the investigator invited you to have tea in an informal setting, you can, of course, if the temptation is really great, have some tea and chat, although I would advise you not to waste your time or someone else’s time. But if you were summoned for interrogation, the investigator has no right to engage in unnecessary chatter, since he is in government service, and you are not obliged to talk.
Interrogation is an investigative action during which important evidence such as testimony is collected and recorded. Well, if that’s the case, then you, as a law-abiding citizen, of course, take the interrogation very seriously. Therefore, rule number one: do not answer a question until it is entered into the protocol. After all, the answer depends on the way the question is put. Do not answer questions that are not entered into the protocol, even if you are asked about the weather, how you are doing, or how your favorite football team played. Do not forget why you were invited! And if your interrogation begins, apparently, with pleasant chatter, which smoothly flows into questions on the case, then, most likely, this is not just psychological reconnaissance, but also an opportunity for the investigator to subsequently exclude from the protocol questions to which, during this nice, preliminary conversation, unwanted answers were received for him, or an opportunity to subsequently arrange the questions in a different order.
If the investigator asks you questions without recording them in the protocol, and during the interrogation only writes down your answers, then, in fact, he is only drawing up a draft of the protocol. During the interrogation, your answers in such a protocol may be transformed beyond recognition. Moreover, after some time, you may not remember verbatim your answer given at the very beginning of the interrogation. It is best to immediately ask the investigator to familiarize you with your rights and, as absurd as it may sound, to warn you about the responsibility for giving knowingly false testimony and for refusing to testify.
Since all this is done against signature, the investigator will be forced to immediately proceed to drawing up the protocol. Remember the simple procedure: the investigator asked a question, recorded it in the protocol; your answer was heard, recorded in the protocol.
Do not hesitate to ask again and ask to reread your answer or the question asked, you have the right to do so, as well as to make corrections to your answer before signing the protocol. After all, you can mix something up, forget or remember and correct yourself if necessary.
Many of us have often seen scenes of interrogation of witnesses in various feature films, where a stern investigator, at the moment when they try to find out the reason for calling him for interrogation, says: “I and only I will ask questions here!” At the same time, paradoxically, when you enter the investigator’s office, the right to ask some questions first belongs to you. The fact is that you have the obligation to truthfully report everything known about the case, as stated in paragraph 4 of Article 78 of the Criminal Procedure Code of the Republic of Kazakhstan. In order to fulfill this obligation, you have the right to inquire about the brief plot of the case, and not just its number and the article under which it was initiated, in order to know what it is all about.
Of course, you must not forget about the principle of relevance of evidence. After all, the protocol of your interrogation will be attached to the materials of the criminal case as evidence. According to Part 3 of Article 125 of the Criminal Procedure Code of the Republic of Kazakhstan, evidence is considered relevant to the case if it represents factual data that confirm, refute or call into question the conclusions about the existence of circumstances that are significant for this case. That is, the investigator has the right to ask you only about facts that relate to this case. In addition, you have the right to ask about the identity of the suspect, accused, victim and your relationship with these persons. You cannot be asked other questions. The liability of a witness for refusing to testify is limited, among other things, by the range of questions that the investigator has the right to ask during interrogation. A guarantee that there will be no irrelevant questions during interrogation is to record each question of the investigator in the protocol.
During the first interrogation, you will first be asked to tell everything you know about the case. At this stage of the interrogation, your story is supposed to be in free form. The obligation to tell everything you know about the case is limited by the amount of information about the case that the investigator told you before the interrogation. But investigators rarely specify the plot of the case. Accordingly, you cannot tell in detail about the circumstances that were not specified. Therefore, it is better to quickly move on to answering the specific questions of the investigator, which will follow your free story. By the way, this stage of the interrogation has not only procedural, but also psychological significance. A person’s free story, the course of his reasoning, his speech, facial expressions and gestures allow the investigator to create a fairly complete psychological portrait of the person being interrogated.
Your answer in the protocol may be transformed beyond recognition. For example, you work as an accountant at a large enterprise, and during interrogation, to the investigator’s question, you answer that you do not remember giving out money to citizen Kudryashova, but usually you always give out money to recipients on the basis of documents certifying their identity and authority. You will be amazed when, while reading the protocol, you see that the protocol will record that you gave out money to citizen Kudryashova on the basis of the identity document she presented. In accordance with Part 1 of Article 212 of the Criminal Procedure Code of the Republic of Kazakhstan, the investigator is obliged to present testimony as verbatim as possible and in the first person. Questions and answers to them are recorded in the order that took place during the interrogation. Taking into account the stated requirements of the law, the investigator, when entering your answer in the protocol, must agree on its wording with you. It is necessary to reject the investigator’s offer to familiarize yourself with the protocol after the interrogation. A firm “NO”! Never give in to any persuasion. The fact is that after the interrogation, the investigator will insist that he wrote down your testimony verbatim, and now you are trying to change your testimony. Therefore, if the investigator still insists on familiarizing yourself with the answers he wrote down after the interrogation, you must use the right granted to you by paragraph 5, part 3, article 78 of the Criminal Procedure Code of the Republic of Kazakhstan to present your testimony in your own handwriting. Never be shy or afraid to exercise your rights. We live in a state governed by the rule of law, a huge amount of time and effort has been spent on developing bills that enshrine certain rights. Technically, the right to personally present your testimony is quite simple to implement. You must inform the investigator that you will not sign the protocol or, at least, the sheet on which your answers are not presented verbatim or in a wording that you are not familiar with. After this, you will either be given paper and a pen, or the interrogation will continue with strict observance of procedural rules. When interrogated as a witness, your duty is to report only the facts known to you. It is the investigator’s duty to draw conclusions from these facts. You should not guess, assume, or draw your own conclusions, if only because there is always a chance that they may be wrong. Sometimes the investigator can lead you to draw your own conclusion. Let’s simulate a situation. Remember the example given above with citizen Kudryashova. The investigator’s question: You actually do not remember any Kudryashova and cannot confirm the fact that it was she who received the money. But you always verify the identity of the recipient, right? You answer: always. Well, that means that since Kudryashova appears in the documents, you could only have transferred the money to Kudryashova, the investigator insists. Well, that means yes, you admit. Well, that’s what we’ll write in the protocol, the investigator says, Kudryashova received the money!
Here’s the trap!
Do not underestimate the investigator, who can build a much more complex chain of reasoning to logically lead you to a certain conclusion. This is absolutely unacceptable! If you cannot confirm a fact, you have only one alternative – to admit that you do not remember, and in no case mislead the investigation with your unreliable conclusions. Forgetting is a natural property of human memory. And most importantly, forgetting is not punishable by law. Therefore, if you do not remember certain facts, insist that the laconic answer “I do not remember” be recorded in the protocol. At the same time, do not respond to all sorts of provocative questions, such as: “How is it that you remember everything, but do not remember this?” And do not try to fulfill the investigator’s demand: “I will have to remember”, “sit down and think about it”. You have already given the answer to the question and it is subject to recording in the protocol of the investigative action.
In linguistics, there is a concept of modality, which comes from classical formal logic, from where linguistics borrowed other concepts. What is modality and why did I even start talking about it? Let’s turn to the free encyclopedia, available on the Internet to everyone, according to Wikipedia: “Modality (from Middle Latin modalis – modal, Latin modus – measure, method) is a semantic category expressing the speaker’s attitude to the content of his utterance, the target setting of speech, the relationship of the content of the utterance to reality. Simply put, you do not claim that black is white. You say that it is possible or very likely that black is white. For example, you are shown a document signed by you five years ago, you claim the following: “it looks like my signature.” When talking about this, you place logical emphasis on modality and the listener understands perfectly well that your statement has a certain degree of probability. But when recording the answer in the protocol, the investigator will omit all modalities, and the future reader of this protocol, unlike the listener, will get the impression that you have definitely confirmed that the signature is yours. It is easy to understand the investigator. After all, he is collecting evidence. And probabilistic judgments cannot serve as evidence. But you, regardless of the investigator’s wishes, cannot mislead the investigation. Therefore, if you are not sure, insist that the protocol contain laconic answers “not sure”, “I cannot say”, etc. It should be noted that sometimes, before recording your answer in the protocol, the investigator arranges a short discussion. If you are not sure whether the signature on the document is yours, the investigator asks harshly – does that mean you did not sign the document. No, – you answer, I do not say that. But either you signed it or you did not, – the investigator does not calm down. And he can be understood, because he needs an exact answer, but by acting in this way, the investigator actually begins to put pressure on you. Such discussions should be stopped immediately. Tell the investigator that you have given an exhaustive answer and intend to make a note in the protocol that you were pressured to change this answer.
Thus, it is important to remember the basic rights of a witness:
— the right to testify in the presence of your lawyer;
— the right to refuse to testify against yourself (we will talk about this in more detail in a separate article);
— to personally write down your testimony in the interrogation protocol;
— answer only those questions that are included in the witness interrogation protocol.
To summarize the above, in order to avoid the most unfortunate consequences, I strongly recommend that before going to the internal affairs agencies on such occasions, you contact a lawyer at least for a consultation and explanation of your rights, and it is best to ensure the participation of a lawyer during the investigative action.
And I am not dramatizing the situation, but only warning you against undesirable consequences and incorrect recording of your testimony in the investigative action protocol, because subsequently you may be brought to criminal liability on this basis. Not everyone has knowledge of the norms of criminal and criminal procedural legislation, and naturally, until a person encounters such a situation, he cannot even imagine that an inattentive attitude to what he says and signs can entail the most negative consequences. Unfortunately, people first commit rash acts, and only then turn to a lawyer. So be more perspicacious, lay down straw where you can fall!