Rules of interrogation: advice to a lawyer from LESHCHENKO & PARTNERS

Interrogation is one of the most common and, at the same time, the most crucial investigative actions in criminal proceedings. It is its results that often determine not only the course of the investigation, but also the further qualification of actions, the formation of the evidence base and the tactics of the parties.

In a new article for LIGA ZAKON, attorney at law of LESHCHENKO & PARTNERS Rodion Dostatnij systematised the key approaches to preparing a defence counsel for interrogation — from analysing the summons to managing the interrogation scenario and rehearsing with the client.

For an attorney-at-law, interrogation is not just about accompanying a client to an investigator to prevent possible abuse (intimidation, psychological pressure or other influence to obtain the desired testimony), but also about taking advantage of the opportunity to shape the course of the pre-trial investigation and promote their own investigative versions, identify inaccurate or contradictory statements, protect the client from intentional or unintentional misrepresentation of facts, and collect and analyse information.

Proper preparation for interrogation and full exercise of the rights granted by law, understanding the limits of admissibility of questions and skills in recording violations during the investigative action – all this, together with other methods, allows the lawyer to avoid negative consequences for the client.

Цей матеріал покликаний допомогти адвокату якісно підготуватися до допиту, максимально ефективно використовувати процесуальні інструменти, передбачені КПК України, забезпечити дотримання прав особи, викликаної на допит, і уникнути поширених помилок, які трапляються на практиці.

The article systematises both classical and non-standard approaches to preparing an attorney for interrogation. The advice is based on the real experience of an investigator and advocacy practice, and is focused on protecting the client’s interests and effectively resisting procedural pressure.

Below are practical recommendations that will help a lawyer to effectively protect the client’s interests during interrogation.

Top tips

The law regulates the interrogation process in some detail, but the advocate must establish his or her own ‘rules of the game’.

Before starting the interrogation, it is necessary to determine the goal that will be most beneficial for the client, since the interrogation is not only when the client answers the investigator’s questions, but also the lawyer’s ability to actively influence the situation:

– establish the grounds for the investigation, the reasons and objectives of the summons, as well as outline the range of circumstances that the investigation wants to establish and analyse the risks that the investigation may pose to the client;

– to identify the logic and sequence of the prosecution’s investigative versions, which will allow timely identification and refutation of contradictions made by the investigation, as well as initiating and promoting their own version;

– to direct the interrogation process to a plane that is beneficial to the defence, creating additional opportunities for the client to defend himself.

Therefore, before the interrogation begins, it is important to analyse the summons in detail to ensure that the summons procedure regulated by Chapter 11 of the CPC of Ukraine is followed.

Failure to comply with any provisions regarding the execution of the summons or the procedure for its delivery is grounds for failure to appear under such a summons. At the same time, it is important to explain to the prosecution what the violation is, why it creates obstacles to proper preparation for interrogation, and to request that these shortcomings be eliminated. Such a position will not only protect the client from possible negative consequences, but also emphasise your active position in protecting their rights.

Particular attention should be paid to the analysis of the criminal proceeding number indicated in the summons, which can provide important additional information using the following sources:

• The Unified State Register of Court Decisions, where court decisions related to criminal proceedings can be found by the case number and information on investigative actions already taken, the existence of a notice of suspicion, interim measures taken, the timing of the pre-trial investigation, etc. can be obtained;
• The website of the Judiciary of Ukraine, if a criminal proceeding has been assigned a single court case number, which allows to find out information on the preventive measures taken, other participants in the case, and the consideration of relevant motions by the investigating judge.

A comprehensive analysis of these two sources will help the lawyer to find out at what stage the criminal proceedings are and what information the prosecution has, and what is the possible role of your client in the case. This data will be useful in further preparing the client for interrogation.

Usually, the summons for interrogation contains the investigator’s contact phone number, which should be contacted in advance to obtain additional information that is not contained in the summons. In a telephone conversation, you can clarify such details as the subject of the interrogation, the approximate range of questions, whether the status of the person being summoned is planned to change, and other material circumstances of the case. This will help the lawyer to better understand the situation, prepare the client for possible questions and determine effective tactics of behaviour during the interrogation. In addition, contact with the investigator may also show the defence as active and constructive, aiming to cooperate to establish the truth and ensure compliance with the law.Use all available mechanisms to carefully collect and analyse all available information about the event under investigation, in particular, establish the circle of participants, the exact chronology of events, available documents and other evidence that may be used by the prosecution. It is also worth finding out whether other persons have been previously interrogated, establishing the dates of such interrogations, and, if possible, determining the range of issues and circumstances that have been or will be the subject of these interrogations. This will help to form a clear picture of the direction of the investigation and the tactics of the prosecution.

Be sure to find out who else besides your client has been summoned for questioning, analyse the dates of the summonses and their sequence. Try to understand the prosecution’s logic behind this sequence. For example, is there any reason to believe that previous witnesses have provided information that your client has certain information or is involved in the crime. This will allow the lawyer and the client to be prepared for potentially uncomfortable questions and to prepare a convincing defence strategy in a timely manner, as well as to be prepared that the purpose of the summons was somewhat different, for example, to notify the client of suspicion.

Therefore, analyse and predict the investigation’s version of your client, as the summons of a person may also have a hidden tactical nature. For example, to intensify the actions of your client or other participants in the proceedings, provoking them to discuss the circumstances of the case or take certain steps related to the events under investigation, especially if these events occurred a long time ago and attention has already been lost to them. The lawyer should emphasise to the client that the interrogation is only one of the many investigative actions conducted by the prosecution, so special care should be taken with regard to their further actions, communications and interaction with other persons. Also, explain that the investigation will try to establish all addresses of residence, work, persons with whom the client is in contact, as well as their contact details for further investigative actions based on the data obtained (searches, NSDI, temporary access, etc.).

Assess potential witnesses who may be questioned in the case. It is necessary to find out whether there are grounds to believe that such witnesses may give false or distorted testimony, or whether they may be used by the investigator to strengthen the prosecution’s case. Preparation for possible contradictions in testimony allows the lawyer to respond in time and effectively protect the client’s interests by guiding the investigation to the possible insincerity of some witnesses.

Before the interrogation begins, be sure to explain to the client his or her key procedural rights, including the right not to testify against oneself or close relatives, the right to refuse to answer questions that go beyond the scope of the investigation, and that it is better not to answer questions that contain an assessment of events or those that the client cannot accurately recall. This will make the client feel more confident during the investigation.

Find out in advance whether your client really has the information that the investigation is interested in, because not every person summoned for questioning is a witness within the meaning of Article 65 of the CPC of Ukraine. Only a person who actually knows or may know specific circumstances relevant to the criminal proceedings is recognised as a witness. Establishing this detail will reduce the risks of manipulation by the investigator.

Teach your client to use the ‘delayed response’ technique. This means making a short pause before answering the question, which avoids hasty, emotional or incriminating answers. Such a pause will allow the client to think about the answer in peace, and the lawyer to write down the question. This is especially important in cases where the investigator repeats the same question in different wording in order to obtain contradictory answers. The lawyer should immediately respond to such situations by emphasising: ‘The client has already answered this question, there will be no other answer’.

Prepare the client to actively and consciously present their version of events during the interrogation. Even if the investigator does not ask questions that could reveal details that are important to you, the client should provide the necessary information on their own. The investigator is obliged to record such testimony in the interrogation report. If this does not happen, your client has the right to make the necessary clarifications and additions himself when reviewing the report before signing it.

Determine in advance the optimal format for presenting information during interrogation. Make use of the person’s right to present his or her testimony in person, which can be useful in cases where it is necessary to avoid video recording of the interrogation, in respect of which the investigation may order psychological, phonoscopic or linguistic examinations. At the same time, if the investigator goes beyond the purpose of the investigative action and turns it into informal communication or exerts psychological pressure, file a motion for mandatory video recording of the interrogation, based on part 1 of Article 107 of the CPC of Ukraine. If the investigator refuses to use technical means of recording, stop participating in the interrogation and challenge the investigator to the investigating judge, while simultaneously filing complaints with the head of the pre-trial investigation body and the prosecutor.

Rehearse the interrogation in advance, using stressful conditions and provocative questions to prepare the client for psychological pressure, involve other people in rehearsals, creating conditions as close as possible to real interrogation. Analyse video recordings of rehearsals to identify and eliminate undesirable reactions (facial expressions, gestures, voice fluctuations).

Teach the client to recognise typical methods of psychological pressure (intimidation, deception, manipulation by the investigator) and to control their own emotions.

Even if your client is not directly involved in the event under investigation, do not allow him or her to play along with the investigator and provide answers that are not based on specific factual circumstances or are not supported by other evidence. Remember that your client may be questioned in court many years later, and the circumstances of the case may have changed significantly. His or her previous testimony may be used by the defence or prosecution as a basis for bringing him or her to criminal liability for perjury.

During the interrogation, manage the client’s behaviour through previously agreed non-verbal cues: gestures, changes in posture, pauses, writing in a notebook – all of these can adjust the dynamics of the interrogation, give the client time to think about answers and signal the need to refrain from hasty answers.

If possible, push the investigator to use mutually exclusive or incorrect wording. Pay attention to bias in the wording of questions that already contain an assumption of guilt or an unproven fact.

Slow down the pace of the interrogation by insisting on an explanation of any unclear or vague term used in the questions. If a question is based on a hypothesis or assumption, demand that the investigator substantiate it.

When appropriate, use ironic or counter questions that reveal the logical weakness of the investigator’s position.

Use unexpected statements and request comments on procedural irregularities, forcing the investigator to act more cautiously and within the law.

Advise the client to avoid short, monosyllabic answers (such as ‘yes’ or ‘no’), especially when the content of the question is ambiguous or formulated in a way that is favourable to the investigation. Such answers may be subsequently interpreted by the investigator in a way that does not correspond to the actual circumstances of the case. Instead, the answer should be balanced, reasonable and contain clarifications that remove potential misrepresentations.

In addition, the client should not neglect the opportunity to re-read the question asked and his or her answer before it is finally recorded in the protocol. This will help to avoid ambiguities, mistakes or manipulations in the future.

After the interrogation is completed, be sure to read the protocol carefully. Do not rush to sign it – carefully check each fragment: whether the questions, the client’s answers, his comments and the general course of the interrogation are correctly recorded. If you find any errors, inaccuracies or missing details, request appropriate changes, additions or clarifications. If the investigator refuses to make these changes, you should note all the comments in the report yourself, pointing out any discrepancies between the actual content of the interrogation and its written form. This is important to prevent the distortion of evidence.

After leaving the investigative body, immediately record with the client all the questions and answers that the lawyer did not have time or could not record during the interrogation. This should be done as soon as possible – while you still have a fresh memory of the course and details of the investigative action. Such a record will be an important tool in preparing for repeated interrogations or for further analysis if there is a need to refute or clarify previously given testimony.