Witness Fatigue: It’s Real

I remind myself that when I contact potential witnesses, that they are doing me the favor. Investigators and attorneys need to be aware that some witnesses should be treated with kid gloves.

Witnesses did not ask to be dragged into depositions, multiple interviews by investigators from both sides, be made “limited purpose public figures” or have their names and phone numbers released to the media. They had the misfortune of seeing something and often came forward on the scene to give information to police or to someone else in authority.

As investigators, we get paid to be the intermediary between the hard-charging attorney and the sometimes reluctant witness. The attorney has the vision for what it takes to win the acquittal, verdict, settlement, etc.

I suppose that one of the reasons why I like doing work for plaintiffs’ attorneys is that I am often the first investigator post-incident to interview an onlooker. The bigger the case, the more important it is to shoot-straight with the person and let them know what might lie in store for them. You know what the witness gets for his or her time or aggravation? I think it’s about $45 in a civil case and of course nothing in a criminal matter.

I had one case in Berkeley several years ago where attorney Richard Shikman and I pretty much had to persuade an entire neighborhood to give sworn testimony against another neighbor, whose son had shot and killed a teenager across the street from them. I could not blame them at all if they had told us to get lost.

I have an ongoing case where a bartender is a crucial witness in a civil injury case. We know the defense investigators and attorneys are going to do their best to tear apart her credibility.

I recently transported a homeless man in San Francisco to a deposition. He had seen a horrific incident in the street. His take? The standard witness fee, some clean clothes and a meal at McDonald’s. He underwent three hours of questioning in a deposition.

One friend was a witness to the incident on BART where a police officer took a crazed man off a train. The fracas made news because amateur video showed glass breaking when the man’s hand struck thin glass as the officer put the man against a window. After he came forward, BART accidentally released his name and phone number to the media.

As good investigators, we gain trust by being honest with witnesses. I tell every witness that their participation with me is voluntary. I never suggest that they not participate with insurance defense investigators or the prosecution team. Sadly, not all police investigators and district attorneys live by the same code.

So to all my willing witnesses I say thank you. To the ones who don’t want to help? I may not like it but I understand.