court.
I have found in my experience
Mort Smith
Playing Hide and Go Seek With
Witnesses
Attorney’s Question….
What do you do when a witness
purposely avoids your investigator?
Locating witnesses is one of the most
difficult tasks given to investigators. The
best time to locate a witness is when the
witness you seek is unaware he/she is
being sought. Their guard is down and
they are less suspicious of strangers at
the front door. After there has been an
interview with your investigator and
realize that they may have involved
themselves in a situation beyond what
their comfort level would allow, they do
all they can to avoid you. The question
is why. Why do witnesses who talk to
you one day avoid you the next? I do
not know all the answers to that question
but I do have some
thoughts.
The Fear of Public Speaking
One of the things people fear most is
public speaking. People have a
legitimate fear of being in front of an
audience and having to answer questions
being fired at them by two sets of
attorneys and sometimes, depending on
the courtroom, a judge. With that, even
friendly witnesses have a hard time with
the thought of testifying publicly in open
4
that often the hardest witnesses to locate
around trial time is the friendly witness
(the witness you popped in on
unexpectedly, interviewed and received
a statement and/or affidavit). Now why
is that?
One reason is that we tend to treat
friendly witnesses like cheap dates. We
woo them into giving us what we want
(statements, affidavits, ext), and when
we get what we want they do not hear
from us anymore until we need them
again. It is during that period of time
that the most damage occurs to that
witness. They tell friends and family
members and sometimes the prosecution
that they spoke to a defense investigator
and gave him/her a statement.
Caution from Friends and Family
How many times has your investigator
reported to you that he/she just
interviewed a witness and that witness
will be great for the case. They report
that the witness is friendly, believable
and said they are willing to come to
court. Then, when you go with your
investigator to meet and prep the
witness, you find they are no longer
willing to talk to your investigator. You
and your investigator make several trips
to that witnesses home and each time
you are told they are not around and/or
they no longer want to be involved in the
case.
One reason for this abrupt change in
heart is the witness confided in their
friends and family that they talked to
your investigator. Their friends and
family members scolded them telling
them that they should never have done
that! That they should not get involved;
that their life could be in danger! They
fill our witnesses heads with all sorts of
TV melodramatic absurd and fanciful
notions and convince our witnesses to
withdraw their cooperation. Chances
are, the person you talk to when you go
to the witness’s home (the gatekeeper) is
the very person who was most
instrumental in spoiling our witness. I
suggest you employ your finest powers
of persuasion when talking to that
gatekeeper. Do your level best to
convince the gatekeeper to make your
witness available. Nine times out of ten,
your plea does not work but it is well
worth the try.
Subtle Advise from the Prosecution
Witnesses who have been interviewed
by members of the prosecution team
tend to allow themselves to get confused
into thinking that the prosecutor is their
personal lawyer. I could retire if I
received a nickel every time a witness
told me "my lawyer told me not to talk
to you about this." I ask, "Who is your
lawyer?" They reply "the states
attorney." Now I am not saying that
prosecutors openly and plainly tell
witnesses not to talk to the defense. I
doubt if they are that ambitious. They
do however; tell their witnesses that they
have the right to talk to whomever they
want and the right not to talk to
whomever they do not wish to talk to.
This followed by, "now the defense will
probably send someone out to talk to
you and it is up to you if you want to
talk to them, but I cannot tell you not to
talk to them. Cute huh? It works.
When I encounter situations like this I
often tell the witness that the prosecutor
is absolutely right. That they have the
right to talk to whomever you want. I
explain to them that the prosecutor is not
their personal lawyer. I then ask them to
5
call the prosecutor’s office right now to
clear up that bit of confusion and to tell
them that I am in their home and want to
talk to them.
Sometimes this challenge alone works
and they acquiesce to the interview.
Other times they call the prosecutor,
explain to the prosecutor that they just
told a defense investigator that they were
advised by the prosecutor not to talk.
After a short series of "uh huh, uh huh,
ok" the interview begins. If a
witness insists that the prosecutor or
police told them not to talk to me I
then take out my note pad and write
down their exact words. I show them
my notes and tell them that I will turn
these notes over to the defense attorney
and the defense attorney will take action
because the prosecutor has no right to
tell them not to talk to me.
The Re-approach
After you have interviewed a witness
and realize that there will come a
subsequent need to re-interview that
witness, a lot of thought needs to go into
the re-approach. As we all know,
interviewing a witness the second time is
often more difficult than it was the first.
As mentioned above we now have to
compete with the witness’s fears as well
as interference from friends, family and
possibly the prosecution. So the
question becomes, how do you go back
and interview that witness? In many
instances witnesses are willing to
continue their involvement in the case.
But in a lot of cases they are not. Unless
you remain in constant contact with your
witnesses you will not know what
personal changes took place in their lives
that cause them to place your case at the
bottom of their list of things to be
concerned about. I therefore suggest
treating the re-approach like the initial
approach.
The Unannounced Visit
Under normal circumstances phoning
ahead to schedule an appointment with
someone is considered appropriate.
And, there may be times when calling
witnesses to schedule appointments may
be convenient, but, more times than not
it only leads to a failed attempt for the
defense investigator. The witness agrees
over the phone and soon after begins to
have second thoughts. They again seek
advice from friends or family members
who advise them to stay out of it. Then,
the witness either calls the investigator
back with a number of excuses to cancel
the appointment.
I am a firm believer in appearing
unannounced at a witness’s home. This
gives me the advantage of surprise.
Somehow, when the witness is talking to
me under these circumstances, I get
more information out of them. In a case
I am working on now, I located and
interviewed an alibi witness at her home.
She is an alibi witness because she
remembered serving our client and his
friends an enormous breakfast at the
restaurant where she worked during the
time the crime was being committed
about a mile away. She was very
pleasant during my interview with her
and provided helpful information.
Doubtless she would be needed to come
to court and tell her story to the judge.
After I completed my interview and
asked her to read my notes and sign her
name at the bottom of my notes page, I
told her she would have to come to court
and tell the judge what she told me. She
agreed. Between the date and time of
that interview and the trial date she
6
avoided the defense team like we were
the black plague. After
she was served with a subpoena to
appear in court she became afraid and
did all she could to get out of coming to
court. Even my subsequent
unannounced attempts to re-interview
and prep her failed.. She recognized me
and alerted her children to divert me
when went to her home. Finally, I sent a
female investigator to serve her at 9:30
p.m. during a week night. My witness
was expecting me during the day and not
a female investigator during the late
evening.
Our resistive witness arrived at court,
angry with us for dragging her into this
case and inconveniencing her life for
two hours. The case had to be continued
and the attorney asked the judge to
admonish all of our witnesses.
This witness was very important to our
case because she was an employee at a
local restaurant who did not know our
client and his friends. She probably
would have forgotten who they were had
they not placed such an unusual order.
A take out order that took her 45 minutes
to prepare. She could account for 45
minutes of our client’s time during the
relevant period. The problem was her
unwillingness to participate. She had
her reasons for not wanting to participate
and we had our reasons for wanting her
to participate. We were not going to
stop pursuing her until she takes the
stand and help us giver our client a shot
at regaining his liberty.
If you can’t find the one you want,
find the one they’re with.
When I was a child my parents listened
to a lot of the old Motown hits. I
remember the words to the refrain of a
song that went "…and if you can’t be
with the one you love honey, love the one
you’re with…you gotta love the one
you’re with…" That song came on the
radio one day while I was looking for a
witness who knew he was being sought.
He had moved from the location I
originally interview at and no-one
seemed to know where he was currently
living. During my last attempt to locate
him at the bad address, one of the
neighbors told me my witness and his
girlfriend moved but he did not know
where they moved to. With the words of
that song swirling around in the back of
my head I asked the neighbor for her
name. He told me. I went back to my
office, and began my search for her. I
found her and in finding her I found him.
The first thing out of his mouth was
"how did you find me?" With a wry grin
and a raised eyebrow I replied, "I’m an
investigator, it’s part of my job to locate
people."
Investigators have many different
techniques to locate witnesses.
Although we all have our particular
styles and techniques, I would caution
investigators not to be so committed to
one particular style as to dismiss all
others. There is an inherent value in
networking with other investigators and
brainstorming with other members of the
defense team.
I recall years ago being asked, how do
you find a needle in a haystack?
Answer, you keep looking. Of course
the more you rummage through the
haystack the more the needle will move
around making it even more difficult to
track. But with perseverance,
persistence and determination, you will
eventually locate that needle.
7
IACDL Newsletter Vol 1 No 4
Mort Smith, M.A. is an Illinois Licensed Private
Detective who specializes in criminal defense
investigations. He is also the Associate Director
of the Defense Investigator Certification
Program, Center for Justice in Capital Cases at
the DePaul University College of Law. Mort can
be reached at 708/612-9722 or
mortsmith@aol.com
The Gumshoo Files…
By Mort Smith
The IACDL realizes that investigators
are important members of the defense
team and would like to periodically
recognize their meaningful work by
publishing an investigative success story
in our newsletter. If you have a story
you would like to share with us, please
email it to me at mortsmith@aol.com.
The 11th hour.
Last year during a civil case in which a
landlord was being sued for striking a
tenant. A witness in the case (a retired
police officer) needed to be served with
a subpoena to come to court and testify.
The attorney tried numerous times to
contact the officer but had no luck.
Finally, at 7:00 p.m. one day prior to the
day the officer was needed, the attorney
requested the assistance of investigator
Cye Baccam. He told Cye he did not
expect any miracles but to at least see
what he could do.
Immediately Cye went into action. He
contacted the police station where the
officer was assigned during the relevant
time period and confirmed that the
officer had retired. The officer had a
very common first and last name. Cye gentleman who confirmed that he was a
conducted a data search using the retired police officer, that he had
officer’s name that yielded over 400 previously been assigned to the relevant
possibilities in Chicago alone. Cye then police station, and, most importantly,
re-contacted the police station and recalled arresting the landlord in this
explained to the person who answered case. As much as Cye wanted to leap for
the telephone that he was trying to locate joy and dance around on the officer’s
the retired officer and asked if they front porch clicking his heels while
could provide any information that singing Clang, Clang, Clang Went the
would be helpful. Obviously they Trolley, he kept his cool, apologized for
refused to give Cye the officer’s home such late notice, explained how difficult
address but did tell Cye the officer’s it was to locate the officer and served
middle initial. Cye was able to narrow him with the subpoena. The officer got
his list down substantially but still had dressed and went to court.
too many possibilities. It was now
almost 9:00 p.m. and Cye still had over As for Cye. Off to the next case…
one hundred possibilities to sort through.
Cye X. Baccam, B.A., C.D.I, is an investigator in
Illinois. He has been in the field for ten years and has
Cye still needed to reduce this problem cultivated a specialty of locating and serving hard to
to its lowest common denominator so he find witnesses. Mr. Baccam is a recent graduate of the
ruled out every possibility that did not fit Defense Investigator Certification Program offered
through the Center for Justice in Capital Cases,
the normal retiring age. All the twenty- DePaul University College of Law.
somethings, thirty-somethings, and He can be reached at 312/217-0287 or
forty-somethings were ruled out. The cyebaccam@aol.com
list dropped dramatically. Cye was still
stuck with the remaining list. He
conducted additional data searches and
determined, as best he could, the
possibilities that matched the officer’s
race based upon the officer’s last name.
The list got smaller. Cye, who had
served over 10,000 papers during his
career, theorized that police officers,
who fit the profile of this officer, tended
to buy homes in certain areas of the city.
He reviewed his list and found the name
of one person who lived in a section of
the city that fit Cye’s theory. The hour
was late and Cye had only one shot so he
Investigator Cye Baccam
decided to go for it. As fate would have
it, there was no answer at the door. Cye
felt very strongly that this might be his
officer.

Cye returned the next morning, rang the

doorbell and the door was answered by a