BLOG BULLETS:

• You shouldn’t necessarily have investigators automatically prepare reports.
• It’s not just harmful evidence reports may create; they may create inaccurate evidence as well.
• Think about deciding whether to have your investigator write a report based on whether you need one in that instance, not because of some standard policy.

NOW THE BLOG:

Have you ever thought about what practice, if any, to establish about whether and when investigators should write reports? Do you always have your investigators write reports? Do you have them write reports unless you tell them not to? Do you have them write reports only when you tell them to? It’s an important question to think about because investigator reports may have to be disclosed as “Jencks material” (see my post on that subject last week), as a statement of the investigator if the investigator testifies, and sometimes as a statement of the witness whom the investigator interviewed. Everyone will have their own opinions about whether and when to have a report written, but I write this post to offer some considerations that should enter into the decision and suggest there are legitimate reasons for not having a report prepared in some circumstances.

It is of course the interests of the client and providing him with the best defense that is the paramount consideration, so you need to consider the advantages and disadvantages of having the investigator prepare a report of a particular witness interview. The biggest disadvantage is that a report may create evidence that will harm your client. This could include both statements the witness made that are damaging on their face to the client’s case and statements the witness made that are inconsistent with what the witness may later testify to at trial. Having a written report with such statements is damaging if the report eventually has to be disclosed as Jencks material.

It’s more than a problem of creating accurate evidence that’s damaging, moreover. Reports can create evidence that’s damaging only because it is inaccurate or, alternatively, just misleading or subject to being twisted and mischaracterized. That’s because words are an imperfect way of conveying what actually happened or what was said. Anytime one person – such as an investigator – listens to another person – such as a witness – tell a story and then transforms that story into a written summary such as a report, there is a potential for inadvertent, entirely innocent mischaracterization, misinterpretation, and/or misspeaking. Such potential exists, first, at the level of the witness putting the story into words for the investigator; second, at the level of the investigator hearing the witness’s words; third, at the level of the investigator using his or her words to summarize the witness’s words in the report; and, fourth, at the level of the cross-examining attorney and/or jury mischaracterizing or misinterpreting the investigator’s words if what the investigator wrote in the report is elicited on cross-examination. These problems exist frankly in any instance; just think about the children’s game where each child tries to repeat a statement in a whisper to the child next to them in a circle and even something simple can come out completely different at the end. But the problems can be even worse if you have an inarticulate or confusing witness, an investigator who’s not the best at listening and/or writing, or subject matter that’s complicated for the witness, the investigator, and/or the jurors.

There’s also a legitimate cost issue to take into account – especially, in these days of fiscal austerity, for appointed or public defender cases. Requiring investigators to automatically write reports of every witness interview uses investigator time that (1) costs money and (2) could be devoted to other tasks. If the attorney doesn’t need a report, why should investigator expense and time be wasted on preparing one?

The ultimate question, therefore, should be whether the attorney needs – or might need – a report. It is certainly important to have a report in some instances. In particular, it will be very important to have a report if the investigator is going to testify about what the witness said during the interview. It will, first, be useful in refreshing the investigator’s memory about what the witness said, and, second, make the investigator’s testimony that he or she actually remembers what was said more credible. And you might want to err on the side of caution in trying to predict what interviews the investigator will have to testify about. You may, however, want the investigator to document only those statements that you would potentially want to use at trial, at least to the extent you can identify them.

The bottom line is this. A practice that investigators automatically prepare reports probably isn’t the best for the client. And it’s not a matter of avoiding the creation of evidence that’s harmful, but accurate; it’s a matter of avoiding the inadvertent creation of evidence that is inaccurate, misleading, or subject to being twisted by an opponent’s artful cross-examination or mischaracterization.