Does a Witness Need an Attorney During a Police Interview?

The realities of life are such that, regardless of our will, we often became a witness of a wide variety of events, incidents, situations, which are observed in everyday life. Sometimes it’s pleasant events such as the birth of a child, sometimes unpleasant, such as death. The same is true for certain incidents and situations. Today one can be the witness at the wedding, and tomorrow he or she becomes a witness for a criminal case, after the fight, which took place during the same wedding.

None of us has immunity for the acquisition of the status of a witness in the criminal procedural sense. At the same time, many people, once in the investigator’s office for questioning, do not know their rights, what they can do and what cannot, how to behave, and feel themselves uncomfortable. Unfortunately, it sometimes happens that officials investigating certain crimes, are restricted to formal and rapid reading of the article of the Criminal Procedure Code, which basically lists the duties of a witness and his liability, if he tries to mislead the investigation and give false testimony. At the same time, many do not even bother to ask the man if he understood the content of the article. After this formality the questioning starts where sometimes the witness can be unceremoniously asked concerning both personal life and its intimate details; often the investigator, annoyed for not having received the desired response, repeat the responsibility which is entailed if the witness provide false or accidently wrong information.

Many people, who were questioned as a witness, later said that they did not know that they can talk to a lawyer and to be interrogated in his presence. Taking this fact into account, it is difficult to overestimate the value of part 3 art. 78 of the Criminal Code of the Republic of Kazakhstan, which provides a list of witness rights, including the right of a witness to testify in the presence of his lawyer.

I, like many of my colleagues – lawyers, have repeatedly participated in such investigative actions, in which defended the rights of the client, having the procedural status of a witness in a criminal case. I would like to share the experiences and knowledge, which may be useful to those witnesses who, for whatever reason, were interrogated without a lawyer. I will try to present the information easily, clearly and simply, since this article is intended for a wide audience and, it is likely that those who will read this article will know nothing in the sphere of law.

So, let’s come to the point.

You received a summon or you received a call from the police, saying that you are called for questioning as a witness. At the same time the officers designate a specific time when you have to appear for questioning. The fact that you work in that time does not give you the right to ignore the call of the investigator, since the presence of the summon frees you from work at the time of questioning. According to paragraph 1 part 4 article 78 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter the Criminal Procedure Code), the witness is obliged to appear when summoned by inquiry officer, investigator, prosecutor and court. So you came to the police department in due time. When the investigator asked you for a cup of tea and questioning in an informal setting, you, of course, if the temptation is great, can drink tea and chat, although I would advise not to waste your own and other people’s time. But if you are called for questioning, then investigator has no right to chat with you, because he is the public servant, and you are not obliged to talk.

Interrogation is investigative action, which involve the collection and recording of such important evidence as testimony. Well if so, then you, as a law-abiding citizen, of course, hall think of the interrogation with the utmost seriousness. So, rule number one: do not answer the question until it is registered in a protocol. It depends on the question and the answer. Do not answer questions that are not listed in the protocol, even if you are asked about the weather, how you are doing, or how your favorite football team has played. Do not forget why you are invited! And if your interrogation begins with the kind of a pleasant chatter that flows smoothly to the questioning concerning the matter, then most likely, it is not just a psychological exploration, but also an opportunity for investigators to subsequently exclude from a protocol the questions for which in the course of this cute, preliminary conversation, they received unwanted answers, or the possibility to subsequently locate the questions in a different order.

If the investigator asks you questions without recording them in the report, and in the course of interrogation records only your answers, then, in fact, it is only a draft protocol. In the course of questioning your responses in this protocol can be transformed beyond recognition. Moreover, after a while you cannot remember word for word your answers given at the beginning of the interrogation. It is best to ask the inspector to introduce you to your rights and ask (even if it is sounding absourdly) to warn you of responsibility for perjury and for refusal to testify.

Since everything is made with written acknowledgement, the investigator will be forced to immediately move to the preparation of protocol. Remember a simple procedure: the investigator asked the question, the question shall be recorded in the protocol; you give tour answer, the answer shall be recorded in the protocol.

Do not hesitate to ask again and ask to re-read your answer or repeat a question once more, you have such a right, as well as to make corrections to your answer prior to the signing of the protocol. After all, you can confuse some facts, forget or recall and correct yourself if necessary.

Many of us have often seen enough scenes of witnesses’ questioning in various feature films, where a stern inspector, at a time when someone tries to find out the reason for the call for questioning, said: “I and only I will ask the questions here!” At the same time, paradoxically, when you enter the office of the investigator, the right to ask some firs questions belongs to you. The fact that you have an obligation to truthfully provide all known information concerning the matter, as stated in part 4 Article 78 of CPC of the RK. To fulfill this responsibility, you have the right to ask a brief plot of the matter, and not only the number and the article, to know what is the case.

Of course, we must not forget the principle of relevance of evidence. After your interrogation report will be attached to the case file as evidence. According to part 3 article 125 of the CPC of the RK the evidence is deemed relevant to the case, if it represents the actual data that confirm, refute or prejudice the findings concerning the existence of the circumstances relevant to the case. That is, the investigator has the right to ask you only about the facts relating to the present case. In addition, you have the right to also ask about the identity of the suspect, accused, victim and your relationship with these individuals. You cannot ask other questions. Responsibility for the witness refusing to testify is limited; among other things, it is also limited by the range of questions that the investigator may ask during the interrogation. The guarantee for the absence of irrelevant questions during the interrogation is recording of each question of the investigator in the report.

During the first questioning, you will be first asked to tell everything you know about the case. This stage of the interrogation assumes your story in a free form. The duty to tell all information known to you concerning the case is limited by the amount of information about the case, which was provided to you before questioning by the investigator. But investigators rarely concretize the plot of the case. Accordingly, you cannot describe in detail the circumstances that were not concretized. Therefore it is better to quickly go to the answers to the specific questions of the investigator, which will follow your free story. By the way, this stage of interrogation has not only the procedural, but also the psychological significance. Free story of a man, the course of his reasoning, his speech, facial expressions and gestures allow the investigator to make a fairly complete psychological portrait of the person questioned.

Your answer in the protocol can be transformed beyond recognition. For example, you are working as an accountant in a large company, during the interrogation, tou answers the question of investigator in charge, that you do not remember that you gave money to Mrs. Kudryashova, but usually you always gives cash to recipients on the basis of documents proving their identity and authority. There is no limit to your surprise when reading the potocol, you will see that in the protocol it is stated, that you gave money to Mrs. Kudryashova, on the basis of her identity document presented. In accordance with Part 1 of Article 212 Code of Criminal Procedure the investigator is required to (if possible) to present evidence literally and in first person. Questions and answers are recorded in the sequence, which took place during the interrogation. Given the stated requirements of the law, the investigator, recording your answer to the protocol should agree its wording with you.

It is necessary to reject the proposal of the investigator to get acquainted with the protocol after questioning. Firmly say “NO”! Never yield to any persuasion. The fact is that after the interrogation, the investigator will insist that your testimony was recorded word by waord, and you are now trying to change your testimony. Therefore, if the investigator will still insist on reading the written answers at the end of the interrogation, you must use the right provided to you by paragraph 5 Part 3 of Art. 78 of CPC of the RK and to record your evidence by yourself. Do not hesitate and do not be afraid to exercise your rights. We live in a legal state, a huge amount of time and effort is spent on the development of legislation in which certain rights are set. Technically, the right to a handwritten record of the testimony is implemented fairly simple. You must tell the investigator that you will not sign the protocol, or at least one of its sheet on which your answers are not recorded word by word or in a formulation with which you are familiar. After that you will be either provided with a paper and pen or interrogation will continue with strict observance of the procedural rules.

During the interrogation as a witness your responsibility includes the provision of only those facts that are known to you. It is the duty of the investigator to draw conclusions from these facts. You do not have to conjecture, assume and draw your own conclusions, because there is always the probability of their fallibility. Sometimes the investigator can bring you to ensure that you have made your conclusion. Let’s simulate the situation. Remember the example of the Mrs. Kudryashova given above. Investigator asks: Do you really not remember Mrs. Kudryashova and cannot confirm the fact that she received the money. But you always check the recipient’s identity, isn’t it? You answer: Always. Well, then if the documents state only the name of Mrs. Kudryashova, you were able to transfer money only to Mrs. Kudryashova – insists the investigator. Well, yes – recognize you. So we will put it in the protocol – says the investigator, – the funds were received by Kudryashova!

That’s a trap!

Do not underestimate the investigator, who can build a much more complex chain of reasoning to logically lead you to a specific conclusion. It is strictly prohibited! If you cannot confirm a fact, you are left with only one alternative – to admit that you do not remember, and in any case not to mislead the investigation by your unreliable conclusions. Forgetting is normal for human memory. And most importantly, forgetting is not legally punishable. Therefore, if you do not remember certain facts, insist on the laconic answer “I do not remember”. It must be recorded in the protocol. And do not react to all sorts of provocative questions, such as: “How can it be that you remember everything except that”. And do not try to fulfill the requirement of the investigator: “you should recall”, “sit for a while and think”. You have already given the answer to the question, and it shall be fixed in the protocol of the investigative action.

In linguistics there is the concept of modality, which came from the classical formal logic, from which the linguistics has borrowed other concepts. What is the modality and why we are considering it. Let us turn to the free encyclopedia, available online to everyone, according to Wikipedia: The modality (from Latin modalis — modal, lat. modus — measure, method) — Semantic category expressing the attitude of the speaker to the content of his statements, the target of speech, relationship between the content of the statements and reality. To put it simply, you are not saying that black is white. You say that it is possible or very likely that black is white. For example, you are provided with a document signed by you five years ago, so you say the following: “It seems that it is my signature.” So speaking you make a logical emphasis on the modality and the listener understands that your statement has a certain degree of probability. But when recording the answer all modalities will be omitted by the investigator, and the future readers of this protocol, in contrast to the listener of the impression will think that you confirmed that it was your signature. It is easy to understand the Investigator. After all, he collects evidences. But the evidence cannot represent probabilistic judgments. But you, regardless of the wishes of the investigator, cannot mislead the investigation. Therefore, if you are not sure, insist on the fact that the answers “I am not sure”, “I cannot say”, etc shall be recorded in the protocol. It should be noted that sometimes, before recording your answer in the protocol, the investigator starts a little discussion. If you are not sure whether it is your signature on the document, the investigator asks – because it means that you did not sign the document. No, – answer you, I do not mean that. But the document can be signed or not signed by you, – the investigator insists. And it can be understood, because he needs a precise answer, but by acting thus, the investigator actually starts to make a pressure on you. Such discussions should be immediately stopped. Tell investigators that you gave an exhaustive answer and you are intend to make a comment in the protocol that you were forced to change this answer.

Thus, it is important to remember the basic rights of the witness:

— The right to testimony in the presence of his lawyer;

— The right to refuse to testify against himself (it will be discussed in detail in a separate article);

— A handwritten record of the testimony in the protocol of the interrogation;

— Answer only those questions that are included in the witness interrogation protocol.

To summarize the above information, in order to avoid the most deplorable consequences, I strongly recommend before going to law-enforcement bodies on such occasions, to contact a lawyer at least for consultation and clarification of your rights, and it is best to ensure the participation of a lawyer during the investigative procedure.

And I do not dramatize the situation, but only warn you of unwanted effects and improper recording of your testimony in the protocol of the investigative procedure, because later on the basis of this you can be held criminally liable. Not everyone have knowledge of criminal and criminal-procedural law, and of course, that before a person is encountered such a situation he or she cannot assume that inattention to what he says and signs can lead to the most negative effects. Unfortunately, people first commit rash acts, and only then go to a lawyer. So be far-sighted, and protect yourself from such consequences!