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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.

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