Drafting Declarations and Reports Alicia Hutton Investigator - - PowerPoint PPT Presentation

Drafting Declarations and Reports

Alicia Hutton Investigator Federal Defender Office District of Massachusetts

PARALEGAL & I NVESTI GATOR SKI LLS W ORKSHOP BOSTON, MASSACHUSETTS - JUNE 2 6 -2 8 , 2 0 0 8

What’s the Difference Between a Report and a Declaration?

Reports

Reports are the Investigator’s Words Convey most of what you learned from the source For internal use, but may be discoverable

MEMO To: Ms. Attorney, Trevis E File From: Alicia Hutton Re: Meeting with Lisa E on Tuesday, February 8, 2005 Date: 02/ 09/ 2005 I met with Lisa E at her home at 8 Haverford St. in Jamaica Plain for approximately one hour. Lisa was at home because she works a split shift for the MBTA. She drives a bus on the morning and evening shifts. Lisa is client’s cousin. Their mothers are sisters. Night of Arrest Lisa told me what she remembers of the evening of Friday, March 12,

• 2004. She was at her mom’s house on Wayne St. with her aunt Kathy M.

Her brother and her cousin Trevis C were there also. Her mother Larisa E was also there. Around 11pm Kathy and Lisa decided to go out for a drink somewhere.

Declarations

May also be called “witness statement” or “affidavit” Declarations are the witness’s words Presented as evidence to prove a fact, usually in support of another written document (i.e. motion, habeas petition) For external use

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS United States ) ) vs. ) 1:03-cr-00000-WGY ) Donald Stevenson ) AFFIDAVIT OF MIA ROMANI I, Mia Romani, do hereby depose and say as follows:

• 1. I am making this statement voluntarily

and of my own free will.

• 2. I own a home at 47 Orlando St. in

Mattapan, Massachusetts. I live at this address on the second floor.

• 6. Two occupants of the apartment, Phil

and Uchendo, were being arrested when I

• arrived. Another person who was being

arrested was a visitor who was a friend of Uchendo.

• 7. Each tenant had a separate lease. The

thee men who each had a lease were named Phil, Uchendo, and Donald.

• 15. All of the officers left the house around

3:00 a.m. Signed under the pains and penalties of perjury. ________________________________ Mia Romani ________________________________ Date

Should You Include…?

Your impressions of the witness Contradictions among witnesses Your investigative leads Any credibility issues

The use of harmful vocabulary Irrelevant and harmful facts Should you destroy notes? What is the attorney/

• ffice practice?

What You Must Disclose

Federal Rules of Criminal Procedure Rule 16 (b) (2) Information not Subject to Disclosure

Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant’s attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, or by prospective government or defendant witnesses, to the defendant, the defendant agents or attorneys.

Jencks Act

26.2 Federal Rules of Criminal Procedure

A written statement that the witness makes and signs, or otherwise adopts or approves, OR A substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording.

Find out the practice in your office regarding disclosure

• f statements.

Getting Organized and Getting It Down on Paper

Pre-Interview Organization

Read and learn the discovery Learn additional facts relating to the case Understand the legal issues and goals Create list of factual areas you need to cover with the witness

Taking Notes

Notes should be organized Notes should be complete enough for later recall, but do not need to be explicit enough for anyone to understand Notes should be accurate

Pre-Writing Organization

Review relevant discovery Review notes of interview Determine what else you need (AND GET IT)

Content of the Report

Who What Where When Why How

Introduction Essentials

Include identifying and contact information for the witness Include the topic of the report if it’s not an interview Identify investigative task Briefly describe the witness and your surroundings

MEMO To: Paul Nolan File From: Alicia Hutton Date: January 11, 2007 Re: Interview with Skye Welles on January 10, 2007

I went to the Boston Cookies office and bakery yesterday morning around 9: 20. I rang the bell and Mr. Skye Welles answered the door. I told him I worked with the Federal Public Defender Office and that we represent Peter Knowland, the man charged with carjacking Mr. Welles’ car. I gave him my business card. He understood and invited me in to talk about the incident. I ncident We sat in the office and Mr. Welles told me how a man and woman knocked at the door to the bakery around 7: 00am in Oct. 2005 and asked if Mr. Welles could give them directions. Welles gave them the directions, but then they asked to use the

• phone. Welles had the man and woman come into the office to use the phone.

Welles said that none of this struck him as odd at the time. Welles said that, in retrospect, it was odd that two people came to the door so early, but at the time he did not think anything strange about it. I dentification

• Mr. Welles described the woman as “distinct” and the man as “generic.” The

description of the man was “dark and short hair, chubby or heavyset, wearing a sweatshirt.” The man was not wearing a hood, although the sweatshirt had a hood. He used the word “generic” a number of times.

Body of Report

Report events (not interview) chronologically Report events in order of importance Use topical headings

Content of a Declaration

Identify the witness’s relationship to the case Explain the basis for the witness’s knowledge Describe what the witness perceived

Grammar/Sentence Structure

Use the Active Voice

The teller saw the robber enter the bank. The robber was seen entering the bank by the teller. The construction w orker said he saw the guy w ith the black hoody run behind the port-a-potty. The construction worker saw a guy wearing a black hoody who was running behind the port-a-potty. The driver escaped w hen she drove dow n Elm St. the w rong w ay. The driver was trying to escape when she went down the one-way street the wrong way.

Avoid “There is” Or “There Are”

There were four men involved in the robbery. Four men robbed the bank. There was no description of the gun given at the scene. No one described the gun at the scene. There is a resemblance between the two brothers. The two brothers resemble each other.

Subjunctive Clause

Unclear: While working at the golf course, Williams told us that Kelley attempted to become a professional golf instructor. Better: Williams told us that Kelley attempted to become a professional golf instructor while Kelley worked at the golf course.

Avoid Using Pronouns

Sarah and Serina They met in 2002. Sarah was 18 and Serina was 15. Sarah met her while she was walking her dog. Sarah learned soon that she and Victor were dating. They became friends and she also became friends with her mother Rachel A. Sarah, who had been living in Dorchester with a boyfriend named Brian, moved in with her and Rachel to their house at 30 Falcon St. Sarah and Rachel started doing coke together. Serina did not do drugs at this point. She ultimately became an addict and lost her job and eventually her home.

Use first person ( I ) to refer to yourself.

I met with Mr. Barnes in the living room of his home at 34 Thatcher St. I asked Mr. Steadman to sit in my car during the interview because it was raining.

Eliminate excess words

Before I conducted the investigation Before I investigated The witness gave testimony in the grand jury The w itness testified in the grand jury The client made an effort to protect his family by… The client protected his fam ily by…

Use Plain Language

The male was observed alighting from the vehicle. The m an got out of the car. We surveilled the dwelling. W e w atched the house.

Thanks to

Nancy Pemberton Pemberton & Assoc. San Francisco, CA Tom Hinton Federal Defender Office

• St. Louis, MO