What should you do if you are summoned for questioning as a witness?

Questioning is a fundamental investigative procedure that is an integral part of every criminal proceeding, regardless of which authority is conducting the pre-trial investigation.

In this article, we provide advice which, if followed, will help minimise the risks for a person summoned to attend questioning as a witness.

The purpose of questioning is to obtain evidence, that is, information regarding the circumstances known to the witness and relevant to the criminal proceedings. A witness’s testimony is a procedural source of evidence. Sometimes, it is the key piece of evidence in the case file.

In the professional terminology of US lawyers, the term ‘questioning’ (from the English ‘question’) is often used to denote this procedure instead of the traditional ‘interrogation’. This is an apt definition, given the form and spirit of such an investigative procedure.

Questioning consists of communication between the investigator and the witness, during which the investigator formulates questions and receives answers on the substance of those questions.

Communication with an investigator almost always involves emotional and logical techniques for obtaining information. Investigators tend to create the impression of mutual interest, appeal to the positive traits of the witness’s personality, and actively employ methods of manipulating information. Creating the impression of comprehensive knowledge and verbal manipulation are the ‘friends’ of the investigation.

The presence of an attorney helps to neutralise such questioning techniques; their role is, first and foremost, to maintain an unspoken barrier between their client and the law enforcement officer conducting the questioning.

As an attorney is not authorised to give evidence on behalf of their client and you will be the one who has to answer the questions, we recommend conducting a ‘practice’ questioning session. The attorney will try to anticipate the questions that might interest the investigator and remove the element of surprise when the investigator asks questions.

Of course, your attorney is not authorised to give instructions that might distort the content of your evidence or lead to you giving knowingly false evidence. However, you will be able to jointly assess the consequences of giving certain statements and determine in which circumstances you have the right to refuse to make such statements.

Avoid being questioned in a ‘free narrative’ format, unless otherwise advised by your attorney.

The investigator’s questions should be phrased in such a way that they are clear to the witness, and the wording of the question should not contain speculation or leading phrases. Take every opportunity to clarify the content of a question; ask the investigator to rephrase the question if it is unclear.

You should not answer a question immediately after the investigator has asked it. Pausing for 5–10 seconds before answering will allow you to consider the investigator’s purpose in asking the question and to anticipate the consequences of your answer. Furthermore, you will demonstrate prudence and be able to set the pace of the questioning that suits you. This will help you mentally downplay the significance of the questioning and ensure a calm atmosphere in the investigator’s office.

You do not need to pretend to be someone who has ‘nothing to hide’. You need to maintain a pause. Every time.

Your answers to questions should be as concise as possible. Do not reveal more information than the investigator asks for. ‘The bare minimum’ is your guiding principle. You will be able to add supplementary information and your own explanations to the record of questioning in the relevant section, but only once the investigator has finished asking questions.

As a result of the questioning, all participants in the investigative process leave better informed than they were before. The investigator obtains testimony, whilst you gain insight into which specific circumstances are of genuine interest to the investigation. Take note of the content of the questions, their order and the investigator’s key points. Such information may be needed in the future.

A witness is obliged to give evidence, but only regarding facts that they have personally witnessed. If you were not an eyewitness to the incident, do not speculate. That is the investigator’s job.

You have the right to refuse to give evidence concerning yourself, close relatives or members of your family, which could give rise to suspicion of a criminal offence. Moreover, you should exercise this right whenever possible.

It is worth noting that a witness is under a duty to give only truthful evidence. Breaching this duty carries criminal liability.

Consequently, a witness’s options are either to give truthful evidence or to refuse to give evidence, provided the relevant conditions are met. So, under what conditions may a witness exercise the right provided for in Article 63 of the Constitution of Ukraine?

Let us explain with an example. The scenario is as follows: an investigator is attempting to establish the circumstances surrounding the handover by one person to another of a folder which presumably contained an unlawful benefit.

Scenario No. 1.
The witness works as the secretary to I.I. Ivanenko.

Question: ‘Did you see P.P. Petrenko hand a white folder to I.I. Ivanenko in office No. 23?’

If I.I. Ivanenko or P.P. Petrenko are not among the persons listed by law, and the witness was not a direct participant in the event, the witness must answer the question as follows. Answer: ‘Yes, I saw that’, or ‘Something was handed over, but I didn’t pay attention’, or ‘I’m not sure; I cannot say for certain’.

Scenario No. 2.
The witness is the person who handed over a white folder to I.I. Ivanenko.

Question: ‘Did you hand over a white folder to I.I. Ivanenko in office No. 23?’

Answer: “Exercising my right under Article 63 of the Constitution of Ukraine, I refuse to answer this question.”

What is the difference? In the second situation, the person being questioned was also a participant in the events, which they experienced personally; however, the incident concerned them personally, and answering the question could form the basis for suspicion of having committed a crime.

If you are unsure about the consequences of answering, you can say: ‘I need to consult my attorney.’ You will be guaranteed a confidential conversation with your attorney.

If you are not prepared to answer in the affirmative, make this clear. If you cannot recall past events, that is not a problem. The fact that a person does not have a photographic memory is not grounds for prosecution.

Video recording may be used during questioning. This is a source of stress; be prepared. It is much more difficult for an investigator to question a witness who does not display obvious reactions to stimuli.

Bear in mind that most investigators are sceptical about the reliability of any testimony they receive. This is understandable, as staff of the pre-trial investigation body must take steps to verify the statements obtained, ‘back them up’ with evidence, or at least with the statements of other witnesses.

Therefore, if you get the impression that the investigator does not trust you from the outset, do not be surprised. Stick to the line of conduct agreed with your attorney.

Once the questioning is over, you should carefully review the record. If your statements have been recorded incorrectly or if the investigator has added their own wording, insist that these be corrected. You are not obliged to sign the record until your statements have been set out correctly.

Read the article on the ‘Yurydychna Gazeta’ website: here.