The most important decisions when conducting a witness interview are whether or not to record the conversation, and if you should notify the witness when a recording is being made.
In Texas (and 38 other states), as long as you are a party to the conversation, it is generally lawful to record the conversation without the consent of the other party. This applies in personal interviews as well as those conducted by telephone. However, before recording, first check to make sure your attorney client approves; if recording is requested, have the attorney client decide if the interviewee should be notified.
Recording without the other party’s consent—even when done legally—raises a potential ethical point of challenge, particularly when a skilled attorney succeeds in casting the episode as sneaky and dishonest. This is an especially valid consideration in today’s atmosphere of privacy concerns. Moreover, if such a recording has been made without the client’s approval, the aftereffect can be disastrous.
A recorded interview often provides clear and incontrovertible evidence; however, it can be a double-edged sword if that evidence is not beneficial to your client. Once obtained, a recording cannot be undone without significant legal jeopardy.
Since evidentiary rules typically classify recorded conversations as witness statements, this can place the recording within the bounds of legal discovery, regardless of whether it was obtained with or without the knowledge of the party being interviewed. Due to the likelihood of discoverability, the benefit of recording should be weighed against the risk.
Each case has its own unique level of complexity, and the investigator is often not equipped to properly judge the full impact of a recorded statement. Consequently, the decision about when and how to record is always best left to the attorney. When in doubt, leave the recorder out.
The seasoned professionals of ResultQuest have conducted countless witness interviews over the course of many decades.
Call us at 713-781-9040 when proper interview techniques are essential to your pursuit of Knowledge for Informed Decisions.
