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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
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