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The Investigations -Continued
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Findings of Fact - 14135_359
WITNESSES The best method for examining a witness depends on the witness and the complexity of the incident. The most  common  method  used  by  IOs  is  the  informal interview. Whatever method is employed, however, the witness’ statement should be reduced to writing and signed  by  the  witness  whenever  possible.  Sworn statements  may  be  taken  unless  the  appointing  order directs  otherwise. A sworn statement is considered more desirable than an unsworn statement since it adds to the reliability of the statement and can expedite subsequent  action  (such  as  pretrial  investigations).  The statement  should  be  dated  and  should  properly  identify the person making the statement; for example, a service member by full name, grade, service, and duty station; a civilian by full name, title, business or profession, and residence. If necessary, the IO can certify that the statement   is   an   accurate   summary,   or   verbatim transcript, of oral statements made by the witness. To  make  sure  all  relevant  information  is  obtained when  examining  a  witness,  the  IO  should  use  the appointing order and the requirements in JAGMAN, chapter II, part B, Investigations of Specific Types of Incidents, as a checklist. In addition to covering the full scope   of   the   investigation   requirements,   witness statements should be as factual in content as possible. Vague Opinions (such as pretty drunk a few beers, and pretty fast) are of little value to the reviewing authority who is trying to evaluate the record. The IO should be able   to   separate   conclusions   from   observations; therefore, when a witness makes a vague statement, try to pin down the actual facts. For example, instead of accepting the witness’ opinion that a person was pretty drunk, the IO should ask the kind of questions that go to supporting that kind of opinion. For example, (1) How long did you observe the person? (2) Describe the clarity of speech? (3) Did you observe him walk? (4) What was the condition of his eyes? (5) What was he drinking? (6) How much was he drinking? (7) Over what period of time? In many instances, limitations on availability of witnesses  will  prevent  the  IO  from  obtaining  a  written, signed statement in the previous manner. When this happens, an IO may take testimony or collect evidence in  any  fair  manner  he  or  she  chooses.  Unavailable witnesses may be examined by mail or by telephone. If the telephone inquiry method is used, the IO should prepare a written memorandum of the call, identifying the person by name, rank armed force, and duty station (if  a  service  member)  or  by  name,  address,  and occupation (if a civilian).    The  memorandum  should state the substance of the conversation, the time and date it took place, and any rights or warnings provided. COMMUNICATIONS WITH THE CA If at any time during the investigation it should appear, from the evidence presented or otherwise, that the CA might consider it advisable to enlarge, restrict, or  otherwise  modify  the  scope  of  the  inquiry  or  to change in any respect any instruction provided in the appointing  order,  an  oral  or  written  report  should  be made to the CA. The CA may take any such action on this report deemed necessary. There is no requirement that such communications with the CA be included in the report or the record of the investigation. INVESTIGATIVE REPORT The investigative report, submitted in letter form, consists of the following items: l s l l l A preliminary statement Findings of fact Opinions Recommendations Enclosures Preliminary Statement The purpose of the preliminary statement is to inform the convening and reviewing authorities that all reasonably available evidence was collected and that the directives of the CA have been met. The preliminary statement should refer to the appointing order and set forth the following information: . The nature of the investigation . Any limited participation by a member and/or the name of any individual who assisted and the name and organization of any judge advocate general who assisted . Any difficulties encountered in the investigation and the reasons for any delay . If the evidence in the enclosures is in any way contradictory, a factual determination in the findings of fact section along with an explanation of the basis for that determination (this explanation should be reserved for  material  facts) . Any failure to advise individuals of their rights 13-8

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