India Criminal Defense Manual - Client Interview

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The First Client Interview

The legal aid lawyer should meet with the client as soon as possible in order to gather preliminary information for building an effective defense. In the first interview, the lawyer should inform the client of the legal procedures of his case and explain his role as the legal aid lawyer. If possible, counsel should meet with their client within 48 hours after he or she has been placed in custody, or within 48 hours of appointment to the case, whichever is sooner.

Establishing the Lawyer-Client Relationship

The initial interview is the most important meeting that the legal aid lawyer will have with the client. The first impression is lasting and is key in shaping the client's judgment of the lawyer. Therefore, the lawyer's primary objective in the initial interview is to establish an attorney-client relationship grounded on mutual confidence, trust and respect.

Listen to the client's story

To be an effective interviewer and communicator, you must learn to use basic listening skills. Try to understand your client's goals and concerns. Let your client know that you are not there to judge him but are, in fact, trying to get him out of trouble. Let the client know that he has control of the interview, for example:

1. "Let's do this: why don't you tell me first why you think the police arrested you. I'll take a few notes and then ask you some questions. Then, we'll try to figure out what we can do to help you. Does that work for you?"

a. Encourage the client to give a full narrative of what happened.

b. If possible, have your client write down his version of what happened.

2. Listen and observe. By listening to others, you show your respect for them. Use body language that demonstrates you are listening and seeking to understand what he is saying.

a. Do not fold your arms or lean back casually. Lean towards your client as he talks to show him you're listening, Encourage your client to share more by nodding your head and saying things like, "Uh huh," "I see," or "I understand." Echo back what the client says. Look directly at the client and make steady eye contact, indicating your interest and concern.

b. Take brief notes to guide you in asking follow-up questions. Note taking also expresses your interest. Before taking notes, remember to ask if they mind and explain that you are only taking notes in order to remember the details.

Cede some control to the client during the beginning portion of the interview.

As mentioned, it is helpful to give control of the interview to the client at the beginning of the narrative segment of the interview. This allows the client to get his troubles "off his chest" by sharing it with you, the problem-solver, and most clients appreciate the opportunity to vent their frustrations, fears, anger, and anxieties. The only negative aspect of giving the client control is that he may tell you more than you need to know at this early stage. After listening to the client's narrative, repeat it back to him. In this way, the client will know that you have been carefully listening and that you understand his narrative.

In the Client Interview, what Responsibilities does the Legal Aid Lawyer have?

When interviewing the client, the legal aid lawyer must inform the client about what he can and cannot legally do to assist the client and must advise the client of his client's rights.

Tell the client that any information he shares about the alleged crime is confidential; however, inform him that you cannot do anything illegal on his behalf.

1. Advise the client of his rights:


b. The right to have a lawyer protect his legal rights and interests.

The lawyer will work his utmost to defend his client's innocence or mitigate the client's sentence.

c. Hearings are conducted in the spoken language commonly used in the locality-judgments, notices, evidence and other documents shall be issued in the written language of the court. If any evidence is given in a language not understood by the accused and he is present in the court, it shall be interpreted to him in open court in a language understood by him. If client is represented by counsel and the evidence given is in a language other than the language of the court, and not understood by counsel, it shall be interpreted to counsel in that language. When documents are offered for the purpose of evidence it shall be in the discretion of the court to interpret as much of the document as appears necessary.[1]

d. The evidence that the prosecution can present to the Court is limited to witness testimony, sworn affidavits (recorded by another Magistrate), statements made to the police only when the defense uses those statements to refute the witness's testimony (and only the aspects of the statement referred to by the defense in cross examination), expert testimony, genuine documents and properly seized evidence, and a verified First Information Report.

e. Legal aid lawyers may collect information pertaining to the case and they may apply before the trial court to summon witnesses to appear in court and give testimony.

f. If a Magistrate declines the request of the accused for summoning of defense witnesses that order may be set aside by the Superior Court on appeal.[2]

g. The client has the right to refuse an unlawful search. If the client is not shown a search warrant before the search is to be conducted, then the search is probably unlawful. Any articles and documents discovered during an inquest or search that may be used to prove a criminal suspect's guilt or innocence may be seized, but articles and documents that are irrelevant to the case may not be seized. All seized articles and documents shall be carefully checked by the investigators jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made and duplicated on the spot and shall be signed or sealed by the investigators, at least two eyewitnesses of respectable repute in the community and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference.[3] The Code of Criminal Procedure makes no provisions for warrantless searches unless they are made in the presence of a Magistrate entitled to issue a search warrant, or if they are searches for a person who may be arrested without warrant in a closed property. However this does not inherently give the police the right to make a search of that place for evidence.

h. The client has the right to refuse to answer any questions that would incriminate him, and cannot be prosecuted for lying in response to questions.[4] No statement made by anyone during the course of investigation by the police is to be signed by any witness or the accused (other than the FIR which must be signed by the complainant or witness and the officer who received the statement after it has been verified by the complainant). Any statements made to the police may be recorded by the officer, but can only be used in court to refute, or later corroborate the testimony of a witness.[5] If the defense is not furnished with a copy of the statement as required under sections 207 and 208 of the Cr.P.C, this should not vitiate the proceedings.[6]

i. It shall be strictly forbidden to collect evidence by threat, inducement, deceit or coercion except to tender pardon to an accomplice for testifying about a crime. This applies at all periods during the investigation and trial.[7]

Information to be obtained in initial client interview:

1. Facts of the case relating to your client;

2. Any witnesses or jointly accused persons who should be found;

3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;

4. Any evidence that can be preserved; and

5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime.

6. The legal aid lawyer must try to answer the client's most pressing questions!

7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment!

Client Interview Checklist

Circumstances of the Arrest

1. First Interview

a. When were you arrested?

b. Where were you arrested?

c. Who arrested you?

d. Were you informed of the reason for your arrest?

e. Did you understand the reason for your arrest?

f. At the time of your arrest, were you shown an arrest warrant or summons?

g. Were you able to read and understand the arrest warrant?

h. Were you provided a copy of the warrant or summons?

i. Were you informed of your legal rights?

j. Was your family or work unit notified of the reasons for your detainment and of the place of custody?

k. Where you presented before a Judicial Magistrate within 24 hours of your arrival at the police station?

l. Did the Magistrate sanction you to remain in custody? If so, for how long?

m. Were you presented a FIR or told on what grounds you were being detained?

n. Was anyone else arrested at the same time you were? If so, do you know their names, addresses and telephone numbers and how to contact their family members? Do you know what offenses they were charged with?

2. Search and Seizure

a. Were you strip-searched?

b. What has been taken from your person?

c. Were any of your clothes seized? Were any articles taken from your clothes?

d. Were any of your bodily fluids or hairs taken for testing?

e. Was a search conducted at the place of your arrest?

f. Was a search conducted at your residence?

g. Was a search conducted at your workplace?

h. Do you know of any other people or places that were searched?

If so, what are the people's names, addresses and telephone numbers? What are the addresses of the places searched, and what types of places are they (e.g., residences, workplaces)?

i. Did you see the police or investigators seize any evidence?

j. What objects were seized?

k. Was there a search warrant, and did you see it? Did you understand it?

l. Were there any witnesses present at the time of the search? If so, what are their names, addresses and telephone numbers?

m. Was the search recorded? Did the investigators sign it? Did you sign it? Did anyone else sign it?

n. Did the investigators make a detailed list and duplicate copy of the articles and documents seized at the scene? Did they give a copy of the list to the owner of the seized items?

3. Interrogation

a. What was said to you at the time of your arrest?

b. What was said to you after your arrest?

c. Who interrogated you; did they wear nametags or other means of personal identification? How many people interrogated you?

d. Who initiated the conversation with you?

e. How did you respond to them?

f. What was your state of mind at the time?

g. Were your statements recorded?

h. Did you write a statement yourself and did the police attempt to get you to sign anything?

i. Were you allowed to adequately review and modify your statements?

j. Were you allowed to write down your opinions?

k. Have your jointly accused persons been interrogated? If so, do you know what they said about you?

4. Requests for legal aid

a. Did you ask for a legal aid lawyer?

b. Did anyone inform you that you could have a legal aid lawyer? When?

c. Have you seen your family members, friends, or co-workers since the arrest?

5. Detention

a. Describe the place where you were detained after your arrest.

b. How many public security officers were present during your arrest?

c. Were any compulsory measures taken against you before your interrogation?

d. Were you threatened with physical abuse during and after the arrest?

e. Were you treated with violence during or after the arrest?

f. Were you verbally abused or threatened during and after the arrest?

6. Information about the alleged victim

a. Do you know the alleged victim? If so, describe your relationship with the alleged victim.

b. Do you know the alleged victim's name, age, address, telephone number, and vocation? Does he have a criminal record?

c. Has the alleged victim been physically or mentally injured? If so, what type of injuries and how serious are the injuries? Has the alleged victim recovered? Has the alleged victim suffered any property damage? If so, tell me about the nature and the extent of damage.

d. Has the alleged victim received any compensation? If so, when, how much and who paid the compensation?

e. What are your feelings about the alleged victim?

7. Information about the jointly accused persons

a. Do you know the jointly accused persons? If so, describe your relationship with them.

b. What are the names, ages, addresses, telephone numbers, vocations and criminal histories of the jointly accused persons?

c. Do you know whether the alleged jointly accused persons have been arrested? If so, do you know what items, if any, were seized from them?

d. Do you know what statements, if any, the jointly accused persons made about you?

The Criminal Charges

1. Do you understand the nature of the criminal charges against you?

2. Do you understand the legal meanings of the charges?

3. Do you understand the defenses you might have to the charges?

4. Are you aware of anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime? If so, what is their name, address and telephone number?

5. Is there anyone else who was charged or who should be charged? If so, what are their names, addresses and telephone numbers? How would you describe their involvement in the case?

Quick Investigation

1. Who should I contact? What are their names, addresses and phone numbers?

2. Are there any witnesses I should talk with? If so, can you give me their names, addresses and telephone numbers? What information do you think they might be able to provide? Do you think they are credible?

3. Is there any evidence that must be secured? If so, can you tell me what it is and where I can find it? Do you know whether it has already been seized? In order to prevent unnecessary trouble or risks, we advise the lawyer to avoid the following actions and behavior during the interview:

1. To leak information about the case to the client, including information relating to written accusations and exposure;

2. To instigate the client to lie about his part in the case;

3. To lend your own cell phone to the client;

4. To give material articles to the client in private;

5. To bring a non-lawyer or the client's family members when meeting the client.

Client Background Questionnaire

Date of Interview:

Name:

Birth date:

Identification Number:

Address:

Telephone:

Education (Degree) (School Name):

Vocational Training (Skills) (School Name):

If applicable:

Driver's License Number:

Automobile Model:

Automobile License Plate Number:

Who would you like to contact/inform about your arrest? Please provide their name, address and telephone number.

Have you contacted another lawyer about this case? Please provide details.

Have you received an arrest warrant (applies to all non-cognizable cases)?

Please provide details.


List any prior arrests and the corresponding sentences.

Offence Date Result


Family

Name Address Birth Date Place of Employment
Father
Mother
Brothers/Sisters
Spouse
Children

Who should be contacted in case of emergency? If it is not a family member, please provide their name, address and telephone number. How long have you known them?


Employment History (List in sequential order, beginning with the most recent position)

From/To Name of Employer Address Telephone Job Type Position and Salary

List personal reference with complete addresses (people who know you, other than your relatives, such as friends or co-workers).

Name Address Telephone

Physical, Mental, Emotional, and Marital Problems and Drug and Alcohol Abuse

Do you have a problem listed above that may be related to your case?

Y__ N__

If yes, please explain:

How long have you had this problem? Who first diagnosed it and when?

Are you currently undergoing treatment or seeing a counselor? Y__N__

Name: Telephone:

Are you currently taking medication for this problem? If so, what kind of medication, how much are you taking, and what is the daily dosage? When was this medication first prescribed? Who prescribed it?


Witnesses: Please list all the names, addresses, and telephone numbers of people who can provide evidence or information about the case.

Name Address Telephone

Jointly accused persons: Please list all the names, addresses, and telephone numbers of people who were involved in the alleged crime. What was the extent of their involvement? Have they have made statements to the police? What did they say? Are they currently in custody? Do they have previous criminal records? What is the relationship between the jointly accused persons and the client?

Name Address Telephone

Bail

What finances do you have for bail?

Are there family members or co-workers who can stand surety for your release

Client's physical features

Height Weight Appearance Other information pertaining to eyewitness identification

Asking Questions

1. Open and Closed Questions

Open-ended questions usually require a more detailed answer than "yes," "no," date or place.

Closed-ended questions can be answered simply with a "yes," "no" or a simple fact.

In general, you want to ask open-ended questions rather than closed-ended questions in your interviews, because the answers to these questions provide much more of the information that you want to know. Also, these questions invite the witness to converse with you instead of simply answering questions. By asking a general question that requires a narrative answer, you will also learn unexpected information. Examples:

Open Closed
Tell me about your family background? Where were you born?
Could you describe one of the arguments? Did your husband hit you? you had with your husband?
Can you tell me about the first time you drunk alcohol? How old were you when you started drinking alcohol?

When to Use Closed Questions

When you need to obtain specific information such as birth dates or identification numbers, a witnesses' short response is fitting. You will also probably use more closed questions toward the end of the interview. Additionally, some witnesses may be confused by open-ended questions. In these situations, you will need to adapt your questioning to fit the witness's ability to answer questions.

2. Leading Questions

Leading questions will often elicit unreliable answers.

Leading Rephrased
I'm sure you loved all of your children equally, didn't you? When your children were small, how were they different from each other?
You never knew what Vijay and his friends were up to, did you? Tell me about your relationship with Vijay before he was arrested.
Visay does not know how to read, does he? What kind of student was Vijay?

3. Follow-up and Probing Questions

The following are ways of eliciting more information from the witness when answering one of your open-ended, non-conclusive questions:

  • Nudging or encouragement: Verbal encouragement in the form of "uh huh" and "go on" will let the witness know that you are following and are interested in what he is saying, and that you do not wish to interrupt him.
  • Silence: You may choose to remain silent for a moment, signaling to the witness that you are waiting for him to elaborate, perhaps nodding and wearing an expectant look on your face.
  • Clarification: You can seek clarification from the witness in a number of ways that lets the witness know that you are interested in what he has said and that you want to make sure you correctly understand what he has said. For example:


  • Ask the witness to provide a more thorough answer: "Tell me more about that," "What else happened that day?"
  • Ask for missing details: "I don't understand. How did Vijay Singh get home from the hospital?"
  • Ask for additional details: "What did you see Mr. Singh do when the fight started?"

4. "Why" Questions

It is usually a bad idea to ask people "why" questions about life events.

"Why" questions often place blame and put a witness on the defensive. Many witnesses simply do not know the answer to why something happened and will invent a seemingly rational reason for their behavior when, in fact, they have no idea what really motivated them. Such answers then become facts that are not particularly helpful to the client. Examples:

"WHY" Questions Rephrased
Why didn't you leave your husband? Was there a time when you thought about leaving your husband?
Why did your husband hit you? Can you tell me what happened between you and your husband that day?
Why do you think you married an alcoholic? Tell me about your relationship with your husband

5. Tips and Tricks

CONFRONTATION

Pursuing a direct line of questioning is usually not the most effective way of eliciting the witnesses' true account. Confronting the witness by pointing out all the contradictions in his account or inconsistencies with other witnesses' accounts can be a very serious mistake. For example, by asking direct questions about abuse, you may push the witness into a state of denial, which would make it difficult for him to disclose the actual situation afterwards. Examples:

  • Your nephew told me that you molested him when he was seven years old, is that true?
  • You said that you quit drinking two years ago, but your wife told me that you were drunk this past weekend. Why did you lie?
  • You're just pretending to read that. You cannot really read, can you?

DO NOT TALK TOO MUCH!

Inexperienced interviewers tend to talk too much. During the interview, you should aim to spend 80% of the time listening to the witness and 20% of the interview talking with the witness.

LISTEN ATTENTIVELY Listening intently requires discipline and practice. Listening, unlike hearing, is not automatic. Listening to a witness answer questions during an interview is entirely different from listening to friends chat. In social settings, you are able to multitask while listening to a friend; for example, while formulating a response, you might also be observing your surroundings or having an internal dialogue that has nothing to do with the other person. During an interview, however, you need to focus on listening to your witness with total concentration and must really pay attention to what they are saying, instead of formulating the next question, looking around the room, or figuring out how the witness' account fits into your theory of the case.

LISTEN WITH AN OPEN MIND

Sometimes we only hear what we expect to hear, rather than what was actually said. If you have already reached certain conclusions about who your witness is and what he will say even before the interview, you will unconsciously filter out information that is not consistent with your preconceived ideas. If the witness belongs to a certain group, you might make assumptions about him based upon your own impressions of that group. You might assume that the witness is racist, ignorant, provincial or superstitious. Once you think you can predict what the witness will say, you will not carefully listen to him. You may also mistakenly form a negative opinion of the person's value as a witness. If the witness' information does not conform to your understanding of the situation, you might dismiss it as an aberration, thus forfeiting an opportunity to develop an important relationship with the witness, one that could result in testimony helpful to your client's case.

BECOME COMFORTABLE WITH CONTRADICTIONS

You should be aware of and keep track of any contradictions, but do not directly question the witness about these contradictions. Different people will often describe the same event very differently, and one person may even describe the same event differently with each telling. Contradictions may actually result from miscommunication. For example, a witness might tell you that she had never consumed alcoholic beverages, but later tell you how she once went out to drink beer. Although this might be inconsistent, you may discover that the witness thought that drinking alcohol only meant drinking hard liquor, not beer.

DOUBLE-CHECKING

Communication between any two people is a complicated process that can lead to both trivial and serious misunderstandings. During an interview, everyone communicates, receives and decodes information, and misunderstandings are liable to occur at every stage of the process. Since every piece of information is based on any previous information, any miscommunication that is not addressed will have long-term consequences. It is essential that you, the interviewer, confirm that the witness understands your questions and that you understand his answers. In the following example, the interviewer is checking to see if he and the witness are discussing the same thing, because they each give different meanings to a word:

Witness Interviewer
My father used to beat me but he treated Vijay better Do you mean he didn't beat Vijay?
Right, only me with his fists. He didn't do that do Vijay Do you mean he didn't beat Vijay at all?
Oh, he would whip him, you know, with his belt You mean he would punish Vijay by whipping him but not by punching him with his fists?
Yes Can you describe one time when you saw him whip Vijay?

In this example, the witness has a specific meaning for the word "beat" (hitting using one's fists) that the interviewer needed to clarify.

REFLECTING

Reflective dialogue, or mirroring, is the immediate repetition of part of the conversation, which allows what has just been said to be adjusted or confirmed.

Witness Interviewer
I never knew my father. Well, I kind of did, but that was later. I met him once with my cousin, and she said, that's your father You didn't grow up with your father?
Right, he never even saw me Who told you that your father never saw you as a baby?
My mom But your family knew who he was
Oh yes, they knew. Of course they knew. Only I didn't know. You said you met him with your cousin?
Yes, once in Murshidabad. Tell me about that.

Conclusion

Interviewing requires mutual communication. Although your goal is to gather information, you, the interviewer, are also unconsciously and consciously communicating a great deal of information to the witnesses through your words, your clothing, your body language and facial expressions, and the types of questions you ask. It is essential that you refrain from using judgmental or critical language, whether verbal or non- verbal.


See India Criminal Defense Manual

References

  1. Section 279 of the Criminal Procedure Code, 1973
  2. Section 233, 243, 254(2) of the Criminal Procedure Code
  3. Section 100 of the Criminal Procedure Code
  4. Article 20(3) of the Constitution Of India
  5. Section 162 of the Criminal Procedure Code
  6. Noor Kahn v. State of Rajasthan, AIR 1964 SC 286: (1964) 4 SCR 521
  7. Section 24 of The Indian Evidence Act and Section 316 of the Criminal Procedure Code