Doing background checks on witnesses

The American Bar Association advises that investigators should continually reevaluate the culpability of witnesses, victims, subjects, and targets

I was attending a training seminar a couple of weeks ago, and someone raised what could be a pretty interesting idea to help an investigation matriculate to a prosecution. In essence (and I'm paraphrasing here), the advice he gave was this:

“Do backgrounds on your witnesses. As we know, witnesses to crimes have varying levels of credibility. Some innocently misunderstand or accidentally misrepresent what they see. Still others are more purposeful in their inaccuracies. When you’ve gathered your statements and are preparing your report, do a quick background to discern whether or not they might have some form of motivation to deceive you, frame the suspect, or have some other hidden agenda.”

Sure, when you see a neck tattoo on your witness which you know to be an indicator of gang affiliation, you probably have solid reason to do a background check — at the very least you need to know if they have open warrants. But running backgrounds on your random stroller-pusher somehow just didn’t seem totally legit to me. Consequently I reached out to Wayne Schmidt at the AELE Law Enforcement Legal Center.

Vetting Victims and Witnesses
“Prosecutors and law enforcement investigators have a moral, legal, and professional duty to vet victims and witnesses — which was vividly illustrated in the case of Dominque Strauss-Kahn in NYC,” Schmidt said in an email.

In fact, the American Bar Association advises that as new information emerges during the course of an investigation, prosecutors and/or investigators should reevaluate “judgments or beliefs as to the culpability or status of persons or entities identified as ‘witnesses,’ ‘victims,’ ‘subjects,’ and ‘targets,’ and recognize that the status of such persons or entities may change.”

Witnesses are somewhat unreliable even in the best of circumstances, but when they’re sufficiently motivated to provide evasive or untruthful testimony because they are either loyal to the target of an investigation or fearful of them, the stakes are raised even further.

Naturally, you should know the law of the jurisdiction regarding the rights of victims and witnesses and should respect those rights. For example, ABA advises that prosecutors “inform a person or the person’s counsel, whether the person is considered to be a target, subject, witness or victim, including whether their status has changed, unless doing so would compromise a continuing investigation.”

Check with the legal eagles in your own PD, and as always, review tour department’s P&Ps to be sure you are in compliance on that front too. We know all too well that you can be acting within the letter and spirit of state and federal laws and still run afoul of department policy.

About the author

Doug Wyllie is Editor in Chief of PoliceOne, responsible for setting the editorial direction of the website and managing the planned editorial features by our roster of expert writers. An award-winning columnist — he is the 2014 Western Publishing Association "Maggie Award" winner in the category of Best Regularly Featured Digital Edition Column — Doug has authored more than 900 feature articles and tactical tips on a wide range of topics and trends that affect the law enforcement community. Doug is a member of International Law Enforcement Educators and Trainers Association (ILEETA), an Associate Member of the California Peace Officers' Association (CPOA), and a member of the Public Safety Writers Association (PSWA). Doug is active in his support for the law enforcement community, contributing his time and talents toward police-related charitable events as well as participating in force-on-force training, search-and-rescue training, and other scenario-based training designed to prepare cops for the fight they face every day on the street.

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