Illinois Association of Criminal Defense Lawyers

Volume 2, Number 1, Spring, 2005

Oops! I Made a Mistake, That’s All…

Question:
I am a defense investigator. One of the techniques I use when taking a written statement
is to purposely plant mistakes throughout the statement and ask the witness to initial the
mistakes. The reason I do this is to prove that the witness actually read the statement.

What are your thoughts?

Well I have at least two thoughts on this subject.

First, the practice of purposely planting mistakes throughout statements is a technique

used by police detectives and/or prosecutors during their interviews with witnesses and
suspects. It is a technique I do not agree with. They take comfort in thinking that
witnesses will be “locked in” to their statements and suspects will be “locked in” to their
confessions because they carefully read the written statements, corrected the mistakes,
and placed their initials by the corrections.

I have interviewed hundreds of witnesses over the years and the one common thread that
links every witness I’ve interviewed is the fact that there are always facts inserted in
statements that witnesses later deny saying.

I have lost count of the number of witnesses who have told me that they did not read the
handwritten statements prior to signing and that they were told by the police to place their
initials next to a number of mistakes within the statements. The way I see it, these
witnesses never really gave a statement. They merely cooperated with the prosecution
for a number of reasons including:

• The police told them they could go home after they sign the statement/
confession,
• The witness did not know what they were signing,
• Coercion,
• Fear,
• Female witnesses are threatened with losing their children,
• Witness was threatened with being charged with the crime if they did not sign.

I recently worked on a case in which several small children were interviewed by police
detectives and a felony review prosecutor about a homicide they witnessed and each
signed multi-page statements. They signed their names at the bottom of each page and
initialed every mistake within in the statements. Some statements contained over twenty
mistakes. The problem with those statements was that the children could barely read
their own homework assignments from school, let alone the multi page statements written
by police detectives and the prosecutor.
What I found most disturbing was the prosecutor threatened to lock up the parents of one
of the children if she did not sign her statement. She told me, on tape, that the only
reason she went along with what the prosecutor wanted was because she was afraid her
mother would go to jail if she didn’t. These children were told where to sign their names
on false statements and they were told where to place their initials. They complied. To
further prove that these children could not read the statements they signed, during each
interview, I turned on my tape recorder, handed them their multi-page statements and sat
patiently while they struggled to read the false statements attributed to them.

Those children, like many adults, signed statements while under pressure. They were
afraid and did whatever it took to get out of the police station. Each child I interviewed
had great difficulty with the statements and neither could read the entire statements
attributed to them by the prosecution. I handed each child an ink pen and asked them to
circle every word they either did not understand, did not say or did not agree with. There
were a lot of circled words and sentences. With the tape recorder still running, I
interviewed them about the homicide and then about their experience while at the police
station. The accounts they gave differed considerably from the handwritten statements
submitted by the prosecution. My taped interviews were given to the attorneys who then
had them transcribed and attached them as exhibits to a pre-trial motion. Our client was
released from custody pending trial.

Secondly, I view a statement that contains multiple mistakes as an indicator that the
interview process was flawed. Flawed interviews produce unreliable and misleading
statements that are easily challenged. Think of the number of times a witness denied
saying something that appeared in a signed statement within the police reports. It
happens all the time, even with witnesses who are pro prosecution.

An occasional false start or a phonetically misspelled word is understandable. Purposely

planting errors and mistakes throughout a document is not. It communicates to the reader
that the interviewer was not paying attention to what the speaker was saying and
whatever is written cannot be trusted.

Statement taking is a contemporaneous process. The witness says something to the

investigator who immediately writes it down. Therefore, there is absolutely no reason for
a trained, experienced investigator to get it wrong. I simply do not trust a document that
is saturated with errors and neither should you.

I worked on a capital case several years ago in which the police planted so many mistakes
throughout their documents that they themselves overlooked many of the mistakes they
intended for the witness to “correct.” There were mistakes in the written statements as
well as the oral summaries they prepared. I still recall that 1:00 a.m. Sunday morning
argument with the defense attorney in which I pointed out the multitude of errors and
mistakes and asked “how many mistakes are we going to allow the prosecution?” The
attorney argued it is normal practice for them to plant mistakes. I argued that it should
not be and that the police secured an indictment and the prosecution brought a case all the
way to trial based on reports and statement that were unreliable.
The judge in that case granted our motion for a directed finding of not guilty and our
client went home.

When defense investigators get called to the stand, it is usually because a prosecution
witness they previously interviewed “flipped” and the defense investigator now has to
take the stand to defend his/her investigation and impeach that witness. It is then that the
defense investigator’s statement is brought out and the defense investigator is questioned
at length about it during cross examination. Any prosecutor worth their weight would
hone in on the mistakes and do their level best to discredit the defense investigator. My
suggestion to you is not to unnecessarily provide the prosecution with the ammunition
they could use against you.

I respect the fact that everyone has their one style of interviewing. I realize that there is
no one size fit all way to conduct interviews. But I do know that it is easier to defend a
clean professional document than one that is waterlogged with mistakes.