Criminal Justice. Dealing With Uncooperative Witnesses

Term Paper, 2014

11 Pages







Criminal offences have a standard of proof put at the common “beyond reasonable doubt” and there is less or no shifting from this at all during trials for criminal offences. There has to be evidence to prove to the standards provided for by the criminal evidence and procedure rules. It follows therefore, that any criminal investigation can be completely hindered if no witness is willing to testify (Shepherd & Griffith, 2013). It has occurred in many investigations and this always jeopardizes the fight against crime. Most possible witnesses claim that availing their selves as witnesses would put their lives and that of their families in danger. What then would a crime investigator do in these instances when the possible witnesses are the only one that can help bring the criminals to book yet they do not want to speak? This paper therefore seeks to find answers to this big question that may, if not well addressed, lead to criminal injustices (Pattenden, 2009).

Before an investigator commences his investigation, firstly he must identify the possible witnesses. Secondly, he must locate these witnesses and plan for the interviews so as to lay grounds for the case. In most cases, possible witnesses do not give all the evidence that would probably help serve justice to both the victims and the alleged criminals (Fisher, 2008). They only give a handful of information, which only acts as a lead to the main piece of information.

However, this is not the case with eye witnesses as their testimony would be taken to be more probative and would in many instances lead to convictions for crimes committed. The problem arises when there are eye witnesses and they are not willing to testify against the suspects. Despite the fact that investigators are entitled to get crucial information for crimes committed, investigators can only do what is within the law to get what would be required to sustain a conviction (Shepherd & Griffith, 2013). Any evidence obtained unlawfully will not be admissible. Some witnesses may not want to be involved in investigations because they took part in the crime and would not wish to be involved in fixing their own selves.

Therefore, the following techniques may be employed to get crucial information from such hard-to-interrogate witnesses. These may be in the form of firstly persuasion. An investigator must be good at persuasion. This may be tricky but if it is the only way to achieving justice then one has to be told why he needs to testify (Pepper, 2005). One may require the court to issue subpoena orders. These kinds of orders are meant to compel a witness to show up in court and give evidence. Although this is mostly ordered by the court to ensure production of documentary evidence, it would also be of much essence in ensuring witnesses testify. This may be one of the ways to ensure a witness with crucial information testifies in court or help in investigation (Fisher, 2008).

There are other ways through which an investigator may ensure an eye witness testifies or gives information that may lead to the apprehension and conviction of criminals. Although there may be some requirements for prosecution witnesses to be called upon in daylight or rather public to testify, this has been one of the impediments to the serving of justice in most court systems (Pattenden, 2009). Prosecutions may be unsuccessful simply because witnesses are required to be seen on public to promote the right to fair trial. Witnesses may develop fear if their identities are to be publicized. The main problem to this is when the respondent knows who the witness towards his possible conviction is and trouble may to brew unless something is done to protect the identity of the witness (Shepherd & Griffith, 2013).

In line with this, it would be prudent of the investigator talks to the eye witness and assures the witness of hidden identity so as not to endanger the witness’s life and that of the witnesses’ family (Melton, 2004). To address this, the investigator and other law enforcement officers may come up with a pact on how to ensure that the witnesses would be protected. The witnesses as human beings also have rights and ought to be given adequate safety if they are required to risk their lives and that of their loved ones for the sake of fighting crime (Pattenden, 2009).

There has to be restrictions on what is reported to the general public by the press or media houses regarding the witnesses in any criminal proceedings. For instance I would promise the witness of the confidentiality of any details, be it personal or evidentiary that he gives. In the case of Massachusetts General Laws on confidentiality of records (Section 12) provides that records shall inter alia, be confidential and shall not be public records. Section 13 of the Massachusetts General Laws on witness protection in criminal matters provides that a prosecuting officer has the discretion to disclose location and identity of any witness under the witness protection program. These, under the above laws, come after weighing the repercussions of either decision when exercising the discretion (Fisher, 2008).

I would therefore explain to the witness why he needs to testify after assuring him of the protection. This would be in the case when the witness would appear to be fearful of some violence against him by the criminal being investigated. I would assure him that the law would protect him against any fears or intimidation from the defendants (Shepherd & Griffith, 2013).

In addition to the above, as an investigator I would do the following to make the witness cooperate. I would visit the reports made by the police and those made at the crime scene. This would help me know exactly what would be relevant to ask from the witness so as to enable me gather necessary information. Furthermore, the eye witness may be so afraid to be seen being interrogated immediately after the commission of the crime under investigation. To curb this, I would give the witness some time so as to interrogate him when he is prepared both physically and emotionally (Pattenden, 2009).

Select an environment that is neutral for both of us to make the witness comfortable to speak out freely without fear. This also may help minimize interruptions during the interviewing. To make this appear comfortable, I would let the witness choose a place where he or she feels free to speak out without fears of anything. Seeking the witnesses’ own time would also be of essence as it would allow the witness to prepare before being subjected to interrogations that are often time consuming (Fisher, 2008).

If there is more than one witness it would be prudent if I separated the witnesses. This would help me assess the truthfulness of the information given. Separating the witnesses would also help me in corroborating and ascertaining the information given. If the witness had been in contact with police in any previous investigations different from this investigation then I would establish how they related at that time and clear any fears of being subjected to threats of being arrested or victimized (Shepherd & Griffith, 2013). This would help me figure out the best way to approach and interview the witness to obtain the required information. After these, it would be easier to milk out the evidence and testimony sought after. This would be necessitated by such things as developing a rapport with the witness (Pattenden, 2009).

Creating a good relationship with the witness would allow for free flow of information from the witness hence the saying “a more comfortable witness always provide more information.” Creating a conducive interviewing environment would also assist me assess the witness’ inter alia, way of talking. In addition to that, it is likely that the witness would have seen much and therefore has more information stored in the mind (Pattenden, 2009). To be able to obtain all the information intended I would try to ensure there is no or less distractions as this could distort the relay of information. Having company at the scene of interview would be one of the possible distractions and avoiding such would be inevitable if a good volume of information is intended.

Lastly, by encouraging the witness to relay the information without fear of anything would help make the witness assume a storytellers role and tell everything the way it happened. This would also mean that the witness should talk of any information he may think is immaterial to the case as in any investigation, information is gathered by collecting from and adding information from different sources (Shepherd & Griffith, 2013). Asking open questions would also help gather bits of information that would be important in the final stages of investigations. After these, I would encourage the witness to contact me in case there is more information he would like to add to whatever he could have already shared with me. This would be followed by my advice to the witness to avoid going public on my discussion with him regarding the investigation (Pattenden, 2009).

All the procedure on dealing with a witness will give due attention to witnesses who are children. With regard to child witnesses there are requirements that need to be met to have the child to testify. The child must have the intelligence and ability to understand whatever was happening at the time the crime he is testifying against was committed. The child must also understand the importance of speaking the truth as anything narrated contrary to this requirement could lead to inadmissibility of the evidence so given. The child must be able to tell what is true and what could be false (Fisher, 2008). That is, he must differentiate what is true from what is not. During investigations, this may be hard to establish and this would lie in the judge’s determination of the child’s competency to testify.

As separation of witnesses is essential during interrogation, so is it when it comes to testifying in court. This therefore emphasizes the importance of sequestrating witnesses when they are to adduce evidence in court. The foregoing enables the judge to establish the differences or similarities in the testimonies so as to reach an informed and fair decision. Children witnesses would also be more likely to give information in the presence of someone they are used to (Cashmore, 2007). It follows therefore that having someone they are familiar with would contribute positively to giving information that may be helpful to the case under investigation and prosecution.

When it come to handling any evidence given by witnesses, it is always important to consider some basics. These range from how you obtain such evidence and how you keep it intact so as to reach a conclusive finality of the investigation. This may also be referred to as evidence management (Shepherd & Griffith, 2013). The method of collecting evidence should not compromise its very nature. The method of storing the evidence should also not compromise the evidence so-collected. This extends to handling the evidence with due care so as not to raise any eye-brows on whether it has been tampered with or not. Thus the evidence produced in court to prove some case should be that which was actually collected for the purpose. It should to be modified to suit the interests of the investigator or the prosecutor (Pattenden, 2009).


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Criminal Justice. Dealing With Uncooperative Witnesses
University of Nairobi  (Law)
Criminal Law
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ISBN (Book)
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criminal, justice, dealing, with, unco-operative, witnesses
Quote paper
Counsel Mayabi (Author), 2014, Criminal Justice. Dealing With Uncooperative Witnesses, Munich, GRIN Verlag,


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