Investigation Primer: Questioning the Evasive Witness
Taking an effective witness statement is an acquired skill. But there is an art to the process as well. Good statement takers plan the course of the statement, but maintain flexibility when they encounter unexpected witness answers.
Your questions are important, but it is equally important to listen to the answers you are given by the witness. Many times, a witness’ answers will reveal more information about the case by disclosing an additional avenue of inquiry. A statement taker must be a quick thinker to recognize that the witness’ answer has opened the door to a new line of questioning.
The questioner must adapt on the fly to formulate the questions regarding the new subject matter. Statement takers who are tied to a checklist or script miss the opportunity to learn more about the case. So do questioners who are so focused on their next question that they fail to listen carefully to the witness’ answers.
Another barrier to taking an effective statement is the failure of the questioner to recognize when a witness has evaded answering the question. To do this, investigators can take tips from experts who have mastered the art of cross examining witnesses. Seattle University Law School’s Distinguished Practitioner in Residence, Ronald H. Clark’s masterful treatise, Cross-Examination Handbook: Persuasion, Strategies, and Techniques, and helpful website, Cross-Examination Blog, are wonderful resources for investigators hoping to take a more effective witness statement.
To become a quality cross-examiner, you must master the ability to critically listen to witness’ answers and identify the weaknesses, fallacies, and evasions in their responses.
One of the more common evasions you’ll need to recognize is the “non-answer.” Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.” At their finest, their responses don’t even appear to be evasive. They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it. They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.
If you’ve ever watched a political interview, you’ve probably seen “non-answers” in action. The interviewer asks a pointed question, but instead of receiving a direct answer, he gets a non-responsive answer like this one:
Q: Are you prepared tonight to say that you’ve never had an extramarital affair?
A: I’m not prepared tonight to say that any married couple should ever discuss that with anyone but themselves. I’m not prepared to say that about anybody… I have acknowledged causing pain in my marriage…
Mr. Clark gives specific examples that demonstrate exactly how witnesses try to evade answering hard questions such as Answering a Question with a Question, Describing What Others Did, and Engaging in Half-Truths or Half-Answers.
Clark ends his blog post with a video clip demonstrating one questioner’s technique to handle non-answers. Watch this clip from the BBC to see Jeremy Paxman’s interview of British Home Secretary Michael Howard. In the interview, Paxman asks the same question twelve times. How many times does Howard actually answer the question? You’ll need to watch the video to see!
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