Investigator Tricks of the Trade, Part 3: Dealing with Difficult Witnesses

Anyone who has done investigations has encountered a witness who is reluctant, difficult, argumentative, or fill in the blank… It’s never easy, but being able to deal with the witness in a professional way that moves your investigation forward must remain your goal.   Sometimes that is easier said than done. Here are some ideas for dealing with difficult witnesses.   

1. Talk to the witness before the day of the interview. It’s best to know what kind of witness you have before the day of the interview. Sometimes you can get a sense through an email, but other times, it may be necessary to have a conversation before the investigation. This is necessary to accomplish #2 below.

2. Identify the root c of what is making the witness difficult. This is important because it will help you to address their concerns. Is the witness not talking because they are unsure what to expect? If so, make sure you explain the entire process, including how you got to this point, and what they can expect during and after the interview. Tell the witness your role is to collect evidence related to the allegation(s) and you are neutral. This should put their mind at ease. Is the witness mad because they’ve been accused of discrimination? If so, remind them that this is their opportunity to share their side of the story and provide a response to each allegation. It’s in their interest to do that.   Is the witness “too important” to make time to talk to you? This sometimes happens with senior executives. The best way to handle it is to acknowledge their schedule and ask to work with their staff to schedule the interview. Remind them that it is very important for them to provide answers to the allegations, and while you can be flexible, there is a deadline. However, don’t wait until the last minute to schedule the interview.  If you can’t figure out the witness’ issue, just ask them. You can say something like, “I get the impression you are uncomfortable meeting with     me. What questions can I answer for you?” Sometimes that is all you’ll need to move the witness forward.

3. Don’t rush to use “you must cooperate” with the investigation. The old adage, “You get more flies with honey than vinegar” is true in this case. Sure, you can remind the witness that there are consequences for witnesses that don’t cooperate, but that escalates the tension that is already there and doesn’t always help move the investigation forward. When people feel pressured they tend to “clam up”. The investigative process intimidates most people. Understanding this should focus you to help them understand that it is in their interest to cooperate fully. Of course, when you have done everything you can and still face resistance, reach out to your team leader or point of contact in the EEO office.  

4. Don’t let the witness intimidate you. Maintaining good customer service skills and professionalism is important, but you cannot fall into the trap of letting a difficult witness intimidate you. You can employ the suggestions we’ve discussed, but if in the end the witness is hostile, remain professional and keep your focus. Make it clear that you have a list of questions that you will be asking and the interview will conclude when you have asked everything you need to. You can note the witness’ reluctance on the record if you feel that it will remain an obstacle. The goal is to not escalate the tension, but you still have a job to do. Stay focused on your questions, with appropriate follow-up and remind the witness they will have an opportunity to review the statement.

5. Consider a written interrogatory. Despite your best efforts, there will be occasions when the witness becomes an obstacle. In these cases, consult with the person who assigned you the case to share the problem and brainstorm how best to proceed. Sometimes sending a written interrogatory to the witness with specific deadline to return can be an effective way to deal with a difficult witness. Always discuss before moving forward with this approach.

Dealing with difficult witnesses can be a challenge. We hope these ideas are helpful, but we’d love to hear your ideas or other approaches you have found effective.