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Witness Interviews and Defense Investigation

When defending a criminal or DUI case, one of the most critical steps in the process of building a defense is the pretrial interview of the prosecutions witnesses. Under Arizona law, the defense is entitled to interview any witness that the prosecutor intends to call at trial. There are certain exceptions to this rule; for example, if a case involves an alleged victim, he or she has the right to refuse defense interview. In fact, the defense is not even permitted to initiate contact with an alleged victim to request the interview. Those interview requests must be submitted to the prosecutor's office who in turn is required to forward it on to the alleged victim.

Prosecution witnesses can generally be divided into two different categories-police officers and civilians. Police officers customarily write a report which is disclosed to the defense early on in the case. Even though this report is available to the defense, it is often necessary to follow up with the officer and conduct a recorded defense interview. Police officers generally do not document every single aspect of their investigation when they write their report. They may neglect to cover something or they may intentionally omit something that they do not appreciate to be important. When a case proceeds to trial and the officer is called to testify, they will more often than not be asked about aspects of their case that were not documented. It is important to interview the officer before trial so you know exactly what the answers to those questions are going to be. Defense interviews are also helpful in the event and officer's recollection changes between the time they are interviewed in the time they testify. Under the Arizona rules of evidence, the defense attorney is typically permitted to impeach the witness with their prior statements from the defense interview if their testimony at trial is inconsistent.

In cases involving civilian witnesses, there is usually an even greater need to conduct defense interviews. In most cases, the civilian witness will provide either a written or oral statement to the police which must be disclosed to the defense attorney together with the police reports. Unlike police officers who are trained to write reports and regularly prepare them as part of their job, most civilian witnesses provide statements which are lacking in detail. The defense interview provides an opportunity to flush out whatever information the civilian witness may have regarding the case. It also gives the defense attorney a chance to explore any history or background with the witness that may predispose them to be biased against one side or the other. Also, by interviewing civilian witnesses, the attorney can assess how well or how poorly the witness will present him or herself on the witness stand.

The information developed during the defense interview process can often be invaluable and allow individuals facing criminal and DUI charges to make a more informed decision when deciding how to resolve their case and allows their attorney to better fashion their trial strategy and conduct effective cross examinations of the prosecution witnesses.

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