MODULE2: INTERVIEWING

COURSE UNITY: Lawyer-Client Interview

BY:
Me Tuyishime Jean Pierre
PART ONE: GENERAL INTRODUCTION
 RELEVANCY
• Interviewing is one of the most fundamental skills
required by a lawyer.
• It is the way lawyers conduct their daily business in
their offices or chambers and the way they present
evidence in court, they ask questions for the client or
witness to answer.
• It is known how difficult that process can be in court.
However. the good news is that the necessary skills
and techniques can be acquired with a bit of study,
a bit of practice and a bit of common sense.
 RELEVANCY CON’T
• We call discussion between a lawyer and a client , or
a potential witness, an ‘interview’ others call it
‘consultation’ or conference.
• Interview is not always held in the office in a formal
setting. It may be conducted telephonically.
 GENERAL OBJECTIVES OF AN
INTERVIEW
• Elicit the relevant facts
• Clarify the client’s objectives
• Explain the law and the procedure to the
client
• Advice the client on the available options
• Counsel the client
• Take instructions on the future conduct of the
matter.
GENERAL STRUCTURE ON AN INTERVIEW WITH
A CLIENT
• The overall goal is to elicit information which is relevant,
complete and chronological. Where should we start? And
what process should we complete before the interview is
concluded?
• HERE ARE THE STAGES
1. Initial meeting and exchange of pleasantries
2. Initial problem and goal identification
3. Dealing with preliminary matters
4. Establishing the facts in chronological order
5. Developing a preliminary theory of the case
6. Giving preliminary advice
7. Concluding the interview
PART TWO: CLIENT-LAWYER INTERVIEW
 OUTLINE
 Purpose & goals of client - lawyer interview
 Stages of client-lawyer interview
 Building rapport
 Preparation for client- lawyer interview
 Conducting an interview
 Opening speech
 Listening
 Questioning
 Feedback
 Body language
 Identifying the client’s aims
 Perceived irrelevance
 Language to be used
 Outline( cont’d)
 Problems of memory
 Problem analysis and advising
 Explaining your advice to your client
 Reasoned course of action
 Ending the interview
 After the interview
 Who can interview? Who can be
interviewed?
Potential Interviewers Potential interviewees
Lawyers Clients, witnesses
Police officers Suspects, victims, witnesses
Prosecutors Suspects, witnesses
Judges Parties, witnesses, victims
Others….. Others…..
 Why interview?
Kinds of interviews Purpose

Client-lawyer interview Obtaining information to be used to find

legal or non legal solutions to client ‘s
problems
Suspects-prosecutor Obtaining incriminating information
interview/interrogation Obtaining confession

Suspects-police officer interview Gathering facts and evidences

Obtaining incriminating information
Obtaining confession

Others… Others…..
 Goals of client- lawyer interview
 To create a relationship of confidence between
lawyer and client
 To identify what the client’s goals are
 To gather information in order to identify ways in
which a client’s goals can be achieved
 To assist your client to reach decisions as to the best
way to achieve the client’s goals
 In short, the purpose of interview is to get and give
information and decide what you are going to do
with the information you have got. It is also an
opportunity to establish and maintain good first
impressions in form of high standards of client care.
What does it mean?
 STAGES OF CLIENT-LAWYER
INTERVIEW
 Should an interview between a client and a lawyer have a
structure?
 Samuel case:
Mr Samuel Usabyimana has been the representative of
ADEPR (Association des Eglises Pentecotistes au Rwanda)
for years(…). In 2015, he was forced by the members of
ADEPR National Committee to resign from his position. He
decided to resign because he could not continue dealing
with ADEPR affairs. After resigning he decided to come to
your law firm to seek your advice.
In group of five: Think of stages of the interview between
Samuel and his lawyer? What can a lawyer do at every
stage?
1. PREPARATION FOR CLIENT INTERVIEW

 It is crucial to prepare thoroughly for all

interviews with clients
 Tips to consider:
Determine the purpose of the meeting. When
dealing with the first interview with a new
client, it is helpful to instruct staff who book
client interviews to obtain as much information
from the client as possible about the nature of
the legal issue on which they want your advice.
 Preparation( cont’d)
Consider the most appropriate structure for
the meeting
Plan the agenda
If the client has been referred from a
colleague, speak to the colleague about the
work being carried out for the client
If dealing with a corporate client, carry out
some research into the client’s company
 Preparation (cont’d)
If dealing with an old client of the firm,
retrieve the old files for the client and refresh
your memory about the cases that the firm
has handled for the client
Prepare the physical settings
Be prepared to offer the client refreshments
If the client has special needs ( e.g. is
disabled, blind, requires an interpreter),
ensure that the appropriate arrangements
are made beforehand
 2. BUILDING RAPPORT
 What is rapport?
 Why is it always necessary to build rapport?
 How to build rapport?
 When to build rapport?
 Discussion in pairs: 5 minutes
 Building rapport: Definition & some
preliminary questions
Definition of rapport:
 Rapport is a friendly relationship in which people understand
each other very well.
Preliminary questions
 What are a client’s feelings when s/he goes to see a lawyer
for the first time?
 What are his/her fears?
 How will the client want the lawyer to behave towards
him/her?
 What, if any, information should the lawyer gather before
the interview proper begins?
 How can you build rapport?

• You have just received a call from the

receptionist in your office. A man called
MUPENZI had made an appointment with
you this morning. He has first arrived and is
in a state of some anxiety and is coming
straight through to your office. He does not
know what he wants or what his problem is.
 How can you build rapport?
• Mr. KALISA came home from work last night
and found a note from his wife. It said” I am
leaving you and taking the children. I have
found a better man than you . Do not try to
find us . You will never see us again”. The
family savings of 10 million FRW has been
taken. He has been all around and no one
will tell him where they have gone.
 3. CONDUCTING THE INTERVIEW
 Opening speech
 Listening
 Questioning
 Feedback
 Body language
 Identifying the client’s aims
 Perceived irrelevance
 Language to be used
 3.1.Opening
 Introduce yourself if you have not met that particular
client before
 Engage in a little small talk before getting down to
business.
E.g. I hope you had no trouble finding our office.
 You might also offer the client refreshments
 Ask your client how s/he suggests the meeting might
be structured
 You might warn your client that you will be making
notes
 Talk about charging system( fees vs. costs)
 3.2.Listening
 Name three things you should be doing while
you are listening
 Discuss in pairs for 5 minutes
 Listening
 Listening is different from hearing
 Listening actively not passively
 Observing the demeanours of the client
 Note taking(When? How? What for? What
next?
 A good listener asks relevant questions
 Be aware of non-verbal cues
 Reiterate what the client has told you
 Listening
Problems

 Concentration

 Misinterpretation

 Maintaining client’s confidence

 Filling in/looking for gaps

 Overcoming listening barriers:
DO’s
 Exclude distracting noises and interruptions
 Ensure your desk is clean of all other client files and is
tidy
 Prepare yourself to listen for an extended period
 Focus your attention on what the client is telling you
 Withhold evaluation of what the client is telling you
 Take notes
 Listen responsively
 Make sure you are prepared
 Overcoming listening barriers:
DONT’s
 Be preoccupied or bored by what the client is telling
you
 Be impatient
 Show that time is an issue
 Show bias
 Focus on the client’s appearance or the delivery of
their instructions
 Interrupt the client or finish their sentences unless it
is necessary to clarify any issue
 Change the subject
 Speak down to a client
 3.3. Questioning
 When and why to ask open questions, closed
questions, leading questions?
 What are the advantages and disadvantages
of these questions
 Discussion in pairs : 10 minutes
 Open questions
 These questions are broad in nature, which allow a client
considerable freedom in answering and providing
information to the lawyer. For example: “How may I help
you?, What happened at the meeting?”
 Asking open questions requires you to be able to stop and
re-direct a client if needed
 Give the client more control of the topics to be discussed
 Even open question limits the scope of the answer
somewhat , in fact it would be impossible to conduct an
effective legal interview using open questions that do not
narrow the focus of the answer
 It encourages the client to go beyond one word answers
 Open questions are useful
 At the beginning of an interview( or during
its early stages)
 When the lawyer does not know either the
purpose of the client’s visit or the nature of
the legal problem
 When the lawyer is understanding a new line
of inquiry in the course of the interview
 When the lawyer is interviewing a new client
 When time is not a factor
 Closed questions
 To obtain specific information
 To quickly clarify something the client said
 To narrow the focus of the interview
 To focus on specific aspects of the client’s
story
 Leading questions
 Are excellent for cross-examination
 They are generally ineffective in legal interviewing-they
exacerbate(make worse, aggravate) the disadvantages of
closed questions
 They greatly narrow the focus of the question by
suggesting the answer
 They rob(deprive) the client of any control of the topic,
the sequence, or the amount of information conveyed
 Nevertheless, leading questions have some usefulness in
legal interviews:
 They may prompt a client to continue talking when the
client is unsure if s/he should continue
 May help to verify information that the client has already
given
 Effecting questioning
 Ask questions based on what the client said
or on the client’s concerns and not on the
lawyer’s curiosity
 Pause after asking a question to give the
client time to respond
 Ask question clearly
 Ask one question at a time
 Use questions intentionally, i.e. to achieve a
specific purpose rather than randomly
 Effective questioning (cont’d)
 Use language that the client will understand and
will not introduce bias into the question or
answer
 Ask questions that are in the client’s knowledge,
if not sure of the level of knowledge always best
to ask
 Avoid complex questions or multiple questions
 Be alert to social, cultural, religious or
psychological constraints which may inhibit
answers being provided
 3.4. Feedback
 Used with the intention of allowing the
lawyer to summarise what s/he has been
told by the client and clarify it with the client
E.g.
 so let’s see if I’ve got this right
 You told me that
 OK, we have identified five issues which we
need to look at a bit more
 Feedback (cont’d)
 Used to encourage the client to communicate
with the lawyer when the client seems to
lack confidence about the relevance of the
issue(e.g. I am not sure if this is relevant,
but…)
 Continuous feedback may also be given to
the client by using short phrases like ‘I see’,
‘that’s interesting’, ‘go on’, ‘right’, ‘yes’, etc
 3.5. Body language
 Non-verbal cues may include:
–Posture (hand on chin, fold fingers,..)
–Body movements (shake head, rolling on
chair…)
–Gestures (giving thumbs up, )
–Facial cues (raising eyebrow, winking, smile-- )
–Body responses (nod, making eye contact…)
 Body language:
Do’s
 Maintain an attitude that shows you are
paying attention
 Maintain eye contact – at a reassuring level
 3.6. Identifying the client’s aims
 What does the client really want?
 What are the client’s underlying concerns?
 What would s/he regard as a satisfactory result?
 Is the client in dispute with another business
with which the client has an ongoing
relationship?
 Are there other problems of which s/he may be
unaware or may not have seen as problems?
 3.7. Perceived irrelevance
 The client may become confused or frustrated
because s/he cannot see the connection
between the questions the lawyer is asking and
the issue on which s/he sought advice
 The only way to tackle this issue is to explain
carefully to the client why the question is
relevant to the issue
 Empathize with your client(understand your
client’s feelings as if you have been in a similar
situation)
 3.8. Use of language
 Avoid using jargon(can be seen as unnecessarily
complicated, technical language used to impress,
rather than to inform, your audience) when speaking
to your client
 Jargon has its uses within the legal community
 Jargon is likely to mystify and alienate the client
 Try to speak plainly, using every day terms
 Find alternatives for legal jargon
 PROBLEMS OF MEMORY
Stages of Memory
1.Acquisition
Frequency
How memorable are the details?
Type of detail (speed, duration, colour)
Exposure time
Meaning
 Problems of memory
2. Retention(ability to remember things)
 Length of time
 What is forgetting?
 Short term, long term memory
 Alteration
 Problems of memory
3.Retrieval
Importing memories
The car collision experiment
The importance of questions
 4. PROBLEM ANALYSIS AND
ADVISING
Problem analysis
 What is the legal issue?
 Is there a non legal option?
 Do you have enough information to advice?
 If not , what do you tell the client?
 Creative solutions
 How much law does your client need to
know?
 Issues
• 1.What is the issue?
• Issue of fact or issue of law?
 Identifying issues
• The process of identifying the issue in
a case is a process of reading the
facts closely and carefully to work
out what legal issue they raise for
determination
 To remember:
• But remember: a consideration of the facts is
the means to discerning the issue of law to be
answered.
• Facts – and any questions of fact you may
have – are not the focus of a legal problem
question
 In practice
• In practice, clients will come to you with
problems which raise both legal and factual
issues. You will then need to be able to
distinguish between the two. You will seek
further instructions to resolve the questions of
fact, but you will have to use your legal
knowledge and research skills to resolve the
issues of law.
 In practice
• A legal practitioner is only interested in those
questions of fact which highlight issues of law
to be resolved, and serve as evidence in
respect of legal propositions which need
proving. Legal practitioners are not private
investigators.
• Remember that a legal problem question, like
an exam question, is artificially constructed to
test your knowledge of a particular area. It
will always be concerned about issues of law
– not fact
Difference between an issue of fact
or law?
• A good rule of thumb is to ask yourself, who
or how a particular issue can be determined.
• If it can be determined by a witness giving
evidence it will be a question of fact.
• If it falls for decision by the judge, it will be a
question of law
So, is a particular fence in
dispute made of timber
palings or colourbond? Any
witness who has seen the
fence can give evidence
about its construction – this
is a question of fact.
Is the fence on the dividing line
between two properties? A
surveyor could give expert
evidence about this matter – it
is a question of fact.
Is the timber/colourbond construction on/off the
dividing line between two properties a “dividing
fence” within the meaning of the “ Civil code Book 2”
– only a judge could answer this. Thus, it is a question
of law
• In a legal dispute, that is a scenario where two
people or businesses have some type of dispute
over the legal consequences of some act, the
issue is always: who wins and why? However,
before determining who wins and why, first we
must know what happened, that is we must
know what the facts are.
• A fact is a description of the who, what, when,
where, and/or why which gives rise to the
dispute. Please note that laws, opinions, issues,
analysis, and conclusions are not facts. Only
descriptions of what happened are facts
 Examples of facts
EXAMPLES OF FACTS
1. John copied Ricardo’s paper during the test.
2. Mary struck Larry during the argument.
3. Lin orally agreed to buy Kim’s car for Rwf 5
Million.
4. The employer fired the employee because the
employee came in late five days in a row.
In the real legal world a great deal of time and
effort is spent trying to determine what the facts
are and it is very common for the parties to
disagree about the facts. A disagreement about
what happened, that is a disagreement about
the facts, is called an issue of fact or a factual
issue. Issues of fact, like all issues, are always
presented in the form of a question to be
answered. Look at the examples of facts given
above. If either of the parties involved disagreed
about the fact, an issue of fact would arise and
the issue could be worded as in the examples
below.
EXAMPLES OF ISSUES OF FACT

1. Did John cheat on the test?

2. Did Mary hit Larry?
3. Was the oral contract to buy the car for
Rwf 5 Million?
4. Why did the employer fire the
employee?
If the parties do not know what law applies,
disagree on what law applies, or disagree about
what the law means, an issue of law or a legal
issue arises. Issues of law are answered by the
judge. The judge researches the law to
determine what law applies and what the law
means. An issue of law also arises if the parties
disagree about whether the facts are sufficient to
support a particular legal determination.
 Exercises
• Consider whether each of the following will be issues
of fact, or issues of law:
– What is the expiry date of a particular lease of a certain
residential property?
– Have all the tenants of the residential property
signed the lease?
– Will all the tenants who have signed the lease be
bound by all the terms written in the lease?
– How many bedrooms does the house the subject
of the residential lease contain?
– Does the house have termites?
 Exercises
• If the real estate agent made an oral promise
to the tenants that the house was free of
termites, and the house proves to be infested
with termites, can the tenants force the real
estate agent to fumigate the premises?
 Isolate the issues of fact and law in the following
problems and describe how you would resolve them:

• Pam is driving along the National Road in

Southern province when she is stopped by
Patrol officers who inform her that she was
travelling over the speed limit.
• Issue of fact: what speed was Pam
travelling – seek instructions.
• Issue of law: is the speed at which she was
travelling in excess of the speed limit posted
on the road in accordance with the relevant
legislation and any regulations made pursuant
thereto
• Someone has taken client owes them money.
The your client to court because they say your
claim they have brought against your client
rests on them saying that your client engaged
in a contract to buy goods which they
delivered but which your client did not pay
the agreed amount for. Your defence as a
counsel is that your client did pay the full
amount as agreed but that this is less than
what is being claimed in court.  
• Legal Issues: Was there a breach of contract?
• Factual Issues:
• - What were the terms of the contract?
• - What was the agreed price?
• - How much was paid?
 5. EXPLAINING YOUR ADVICE TO
YOUR CLIENT
 Non legal language (Explain a limited liability
company)
 Options
 In pairs. Client will explain the situation to
the lawyer and ask the question.
 Lawyer will answer the question in terms the
client will understand.
6. REASONED COURSE OF ACTION
 Options
 Who decides which option? lawyer or client?
 MAKE A PLAN
 Time framed
 Who does what?
 Timetable
 Objectives
 What should a Lawyer tell his/her
client?
1.The name and status of the person dealing with the
case and the name of another person in the firm who
the client may contact if a problem arises.
2.What action the lawyer will be taking on the client’s
behalf including next immediate steps.
3. What action (if any) the client has to take?
4. The likely duration of the matter including the
approximate time when the lawyer will next contact the
client
5. The likely cost of the matter and how the cost will be
funded
 Special problems in client
interviewing

1.Ethics in client interviewing

2.Handling private or embarrassing material
3.When the client is distraught
4.Handling possible client fabrication
5.When the client wants a prediction on the
spot
6.Negotiating a fee agreement
 ENDING THE INTERVIEW
 Confirming
 Ensuring understanding
 Check contact details
 Reassure
 “Is there anything else I can help you with?”
 Getting the client out of the office
 Farewells
 ENDING THE INTERVIEW CON’T
NB: If the interview has been successful the
following things will have been achieved:
-A rapport will have struck with the client;
-A professional relationship will have been established between
the lawyer and the client. The client will be re-assured that the
matter will be dealt with confidentially, s/he will be involved in
all important decisions and s/he can trust you to deal with the
problem/s completely; and
-The main question/s the client had when s/he came to see you
(what can I do? What should I do?) will have been answered to
the client’s satisfaction.
NB: The interview should end as it started, with the lawyer
accompanying the client to the reception area of the office,
handshake….
 SUMMARY
NO Activity Content

1 Preparation What do I know about the client and her problem? What can I
do to prepare?
2 Meet and Greet How can I put the client at ease? How can I establish rapport with
the client? How do I establish a proper professional relationship?

3 Essential Information Name? Contact details? Fees? How should the client contact
the firm?
4 Obtaining information How do you get the client’s story? When do you use open
questions and when closed?
5 Listening How do you listen actively? What should you be doing when
you are listening?
6 Supplemental How do you ask more detailed questions? How do you ask
information difficult questions? How do you ask questions systematically?
Any documents or letters you need from the client?
7 Client goals What does the client want? Is it realistic? Does it require a
legal solution?
 SUMMARY
No Activity Content
8 Summarizing the facts Have you checked the facts the client has given you? Is that
everything relevant she can give?
9 Problem analysis and Can you analyse the client’s problem in legal and non legal
giving advice terms? Can you explain your analysis to the client in
language she will understand? What advice can you give on
the facts as you know them?
10 Reasoned course of Can you explain to your client her options? Can you assist
action her to make a reasoned choice?

11 Concluding the interview Does the client know what you are going to do next and by
when? Is there anything the client has to do and by when?
When is your next meeting? How do you get the client out
of your office?

12 After the interview What actions do you take now?

 PART THREE

WITNESS INTERVIEW
 OBJECTIVES OF THE SESSION
• Define a witness and ability to know the
different types and categories of witnesses
• How to plan and carry out a witnesses
interview and how it is different from other
client interviews
• Ability to interview a witness and get
information
 A QUOTE TO REFLECT ON

David Luban, Lawyers and Justice : An Ethical

Study, 1988 said “the pre-trial “preparation
of witnesses....is a practice that, more that
almost anything else, gives trial lawyers their
reputation as purveyors of falsehoods.”
 LEGISLATIVE FRAME WORKS
• Law on evidence in Rwanda
• Law on CCLAP
• The penal Code
• Criminal Procedure
 Introduction
• In most cases the client is likely to be a witness
at the trial. Lawyer can also need to call other
witnesses.
• An interview with a potential witness is
conducted according to the general scheme as
client interview with some differences.
• It is extremely important that the evidence
given in court by witness should be
uncontaminated, meaning that their evidence
should be free from external influencing.
 Introduction Con’t
• The persons most likely to be able to influence
the evidence of a witness are the client and
the lawyer.
• Lawyers can contaminate the evidence of a
witness by suggesting facts or answers, by
creating claims or defences and even by
employing inappropriate interviewing
techniques. Such practices are dishonest,
unethical, dangerous and subversive of the
justice process. No lawyer worth his/her salt
will engage in them.
 WHO IS A WITNESS
• A witness is someone who has, who claims to
have, or is thought, by someone with
authority to compel testimony, to have
knowledge relevant to an event or other
matter of interest.
• In law a witness is someone who, either
voluntarily or under compulsion, provides
testimonial evidence, either oral or written, of
what he or she knows or claims to know about
the matter before some official authorized to
take such testimony.
 WITNESS-EACJ
• Rule 56 of the East African Court of Justice
rules of Procedure: ‘Any party in a claim or
reference may obtain an application to the
Court, summons to any person whose
attendance is required either to give
evidence or to produce documents.’
WITNESS-AFRICAN COURT ON HUMAN
AND PEOPLES’ RIGHTS
• African Court on Human and Peoples Rights
also provides for witness although it does not
clearly define who is a witness.
• Rule 46 refers to witnesses, experts and
other persons as different and independent
from each other’ It states in point 1 ‘The
Registrar shall issue summons to any
witness, expert or other person the Court
decides to hear.’
 WITNESS-ICTR AND ICC
• Also recognize the role of witness
• Both tribunals have a separate unity in charge of Witness and
victim protection
• ICC rules of procedure and evidence allow the witness to not
disclose any information that may result in self-incrimination
(Rule 74 (3)(a) A witness may object to making any
statement that might tend to incriminate him or her )
 WHO DO WITNESSES SERVE AND
WHAT IS THEIR ROLE IN COURTS ?
• In a court proceeding, a witness may be called
(requested to testify) by either the prosecution or
the defense. The side that calls the witness first
asks questions, in what is called
direct examination. The opposing side then may
ask their own questions in what is called
cross-examination. In some cases,
redirect examination may then be used by the
side that called the witness, but usually only to
contradict specific testimony from the cross-
examination.
 HOW WITNESS INTERVIEWING IS
DIFFERENT FROM CLIENT INTERVIEWING?
• Witness interviewing can be both easier and harder than
client interviewing. It is easier because your main goal is to
develop information and evidence. You are not for example,
building a professional relationship with a client or helping a
client deal with a stressful situation.

• Witness interviewing can be harder if the witness is neutral or

hostile. Out of self-interest, a client will usually tell you what
you need to know. A neutral or hostile witness will not do so
unless you can provide sufficient motivation.
 SOME TYPES 0F WITNESSES
• Eyewitness
• Hearsay Witness
• Lay Witness
• Expert Witness
• Material Witness
• Character Witness
• Reputation witnesses
• Fact witnesses
 Eye witness
Eyewitnesses are people who have seen an event firsthand as it
pertains to the case. Testimony will be limited to the facts, as the
eyewitness observed them. Testimony by an eyewitness will not
include opinions or assumptions. An eyewitness may testify for either
the prosecution or the defense and is subject to cross-examination by
the other side.
In order for an eyewitness to testify, he must be competent. For
example an eyewitness will not be allowed to testify if, at the time of
the event, he was intoxicated or legally insane. (The prosecutor v J.
Kajelijeli, ICTR, par. 400 ‘…[T]his is evidenced in the eye witness
testimony of Prosecution Witness GBH, who stated that the Accused
was “seen in the company of the young people while they trained on
a football field using the guns,….)
 Hearsay Witness
Hearsay witness is one who testifies what someone else said or
wrote. In most court proceedings there are many limitations on
when hearsay evidence is admissible.
In Kajelijeli v The Prosecution the court recognized hearsay
evidence based on the provisions of rule 89(c) of the ICTR. It
states ‘A Chamber may admit any relevant evidence which it
deems to have probative value.’ On par.401 the Chamber made
reference to testimony given by a hearsay witness.
The Court stated ‘…the evidence provided by…according to which
Joseph Nzirorera provided the Interahamwe with uniforms and
weapons and that the Accused distributed them at graduation
from training, was hearsay testimony. In the absence of
corroborating testimony, the Chamber finds this hearsay
evidence insufficient …’
 Lay Witness
A lay witness is an ordinary person who has firsthand
knowledge about pertinent facts related to the case. A
lay witness testifies based on personal knowledge and
life experiences. Generally, the lay witness' testimony
is limited to facts; however, some jurisdictions now
allow opinions from the lay witness. In order to do so,
the opinion must be reasonably based on the
perception of the witness and may not be established
on knowledge beyond that of an ordinary person.
 Expert Witness
An expert witness is someone who has knowledge
that is beyond that of the average person. An
expert does not need to have firsthand knowledge
of the event but must be qualified through training,
specific knowledge and experience to provide
testimony in his area of expertise.
Examples of expert witnesses include handwriting
experts, forensic pathologists and doctors.
Expert witness can offer opinion
 THE STATE V OSCAR PISTORIUS
The State v Oscar Pistorius: High Court called different Expert
witnesses.
-Psychiatrists said “At the time of the alleged offences, the accused did
not suffer from a mental disorder or a mental defect that affected his ability
to distinguish between rightful or wrongful nature of his deeds and a mental
disorder, or mental defect did not affect his ability to act in accordance with
the said appreciation of the rightful or wrongful nature of his deeds.”
- Psychologist said “ Mr Pistorius did not suffer from a mental defect or
mental illness at the time of the commission of the offence that would have
rendered him criminally not responsible for the offence as charged. Mr
Pistorius was capable of appreciating the wrongfulness of his act and/or
acting in accordance with an appreciation of the wrongfulness of his acts.”
 Oscar Pistorius case Con’t
In the Supreme Court of Appeal (SA)
…the failure of the court (High Court) to take into account the evidence of
Capt Mangena , a police forensic expert, whose evidence as to the
reconstruction of the crime scene was found” is of particular importance.

Having regard to the position of the bullet holes in the door, the marks the
bullets left in the toilet cubicle and the position of the injuries on the
deceased’s body, ….he determined that the deceased must have been
standing behind the door when she was first shot and then collapsed
down towards the toilet bowl….
•NB: The matter was referred back to the trial court to consider an
appropriate sentence afresh in the light of the comments of the SCA.
 KAMBANDA HUSSEIN V THE PROSECUTION
KAMBANDA Hussein V The Prosecution (RPAA 0054/10/CS)
The major issue was to examine whether KAMBANDA Hussein was the father of
IYIZIRE. The Appellant contested the results of DNA test which was at the rate of
99,9999%.
Experts involved:
1.Dr. MUNYANKINDI Laurent, Muhima Hospital (took the blood for test);
2.Dr. CHRISTA Augustin, Institute of Legal Medicine Department of Forensic
Molecular-biology in Germany (Performed DNA test);
3. Dr. Abel Kagame, (Interpreted the DNA test for the Court)
The Supreme Court set as a precedent that :
DNA test can prove existence on non-existence of blood relationship between the
tested persons;
When DNA test is at a rate of 99,99% is reliable
 Character Witness
The purpose of the character witness is to give testimony on behalf of
another person, generally a criminal defendant, or in civil cases such
as fraud. The character witness testifies to the accused's ethics,
morality and standing in the community. Such testimony is based on
personal knowledge of the accused and is used to indicate that the
accused is less likely to have committed the offense due his
upstanding character.
In Rogers v. State, 70 S.W.2d 188, 189 (Tex. Crim. App. 1934) the Court said
that ‘Character, as the term is used in our jurisprudence, means the
estimate attached to an individual by the community, not the real qualities
of the individual as perceived by the witness. In other words, it is not what
the individual in question really is, but what he is held to be by the society
in which he moves.’
 Character Witness: Some Examples
Examples:
1.Holding trait of ‘honest and fair dealing’ is admissible in fraud case, see
Canto-Deport v. State, 751 SW2d 698, 700 (Tex. App.—Houston [1st Dist.]
1988, pet ref’d)
2.Evidence that appellant had a reputation as a parsley salesman was not a
pertinent character trait in a delivery of marijuana case. Spivey v. State,
748 S.W.2d 18, 20 (Tex. App.—Houston [1st Dist.]1988).
3.Reputation for truthfulness is not pertinent character evidence in a
possession of marijuana case. Spector v. State, 746 S.W.2d 946, 949 (Tex.
App.—Austin 1988, pet. ref’d).
4.The defendant’s character trait for being a law-abiding citizen is
automatically at issue because of the accusation against him. Hammer v.
State, 314 S.W.2d 301,305 (Tex. Crim. App. 1958)]
 Material Witness
A person who testifies as a material witness has
information that is powerful enough to influence the
outcome of the case. In such cases, the court must make
every reasonable effort to allow such testimony. This
includes delaying the trial if the witness is not immediately
available.
In The Prosecutor V Jean Paul Akayesu (para. 262-263)
‘The Chamber is satisfied that the witness could
reasonably have seen and heard the matters to which he
testified. Witness S confirmed Karangwa's evidence in all
material respects…. Witness S's identification thereof is
more reliable, as he was in close proximity to the Accused in the
courtyard of his house’
The Prosecutor V Jean Paul Akayesu Con’t
The defense did not specifically address allegations,
and failed to challenge the evidence of witnesses S,
Karangwa and others on material issues, such as his
hunt for Karangwa, orders to look for Karangwa and
other tutsi to be killed, his presence at the houses of
Karangwa and witness S, his carrying of a grenade
and his participation in the killing of the Karangwa's
brothers by ordering their deaths and being present
when they were killed. (Akayesu, par.267)
 Reputation Witness
A reputation witness is one who testifies
about the reputation of a person or
business entity, when reputation is
material to the dispute at issue.
 Fact Witness
Fact witnesses are seen to be sources of the evidence. It is a person with
knowledge about what happened in a particular case, who testifies in the
case about what happened or what the facts are.
Their testimony consists of the recitation of facts and/or events as opposed to
an expert witness, whose testimony consists of the presentation of an
opinion, a diagnosis,.. Fact witness may not offer opinion. (see Akayesu case
par.158-164, testimony by Dr. Zachariah {medecin sans frontiere} for
killings from Butare to the Rwandan boarder with Burundi; L.Hilson {a
journalist} for killings in Kigali ; Cox Simon {a cameraman and
photographer; for killing from Mulindi to Rusumo Boarder; there is also
testimony by Alisson Desforges and General Romeo Dallaire).
NB: All witnesses only recited what they saw and heard as pertained to the
killing of Tutsis. Their testimonies were not meant to establish Akayesu’s
role in Killing.
 CATEGORIES OF WITNESSES
All above types of witnesses can be grouped in the following three
types:
Friendly Witness (wants your client to win and is willing to help)
Neutral Witness (does not care who wins; a neutral witness either
does not want to get involved or is willing to testify at trial out of a
sense of obligation to the system of justice. what makes the witness
neutral is not caring who wins. What the witness observed and
remembered, however, usually does help one party and hurt the
other)
Adverse or hostile Witnesses (wants your client to
lose- or at least wants the other party to win- and is willing to say and
do things that hurt you).
NB: Normally a party is not permitted to cross-examine their own
witness unless the witness is declared hostile.
 CATEGORIES OF WITNESS CON’T
Case laws defining hostile witness:
-In Lambart Case the court stated “"[A] hostile witness is one who
demonstrates it by his demeanor.”

-The United States Court of Appeals stated in Rodriguez “"A hostile

witness, in the jargon of evidence law, is not an adverse party but a
witness who shows himself or herself so adverse to answering
questions, whatever the source of the antagonism, that leading
questions may be used to press the questions home.”

-See also Boland v Globe and Mail Ltd, 1961 in Ontario; Admundi
Mathonsi vs the State; Meyer’s Trustee v Malan 1911 TPD 559 at 56;
Harvey v Thomas (1907) 24SC 463.
 THREE THINGS TO CONSIDER DURING
INTERVIEW WITH A INTERVIEW
• Handling yourself ethically in a situation fraught
(full of) with temptations

• Getting neutral and hostile witness to cooperate,

( Learn from the witness, make lasting
impression, point out inconsistencies with out
showing that you undermine the ideas of a
witness and preserve evidence)

• Finding out everything the witness knows

 STEPS TO GETTING A WITNESS TALK
Other than having a pleasant personality, what can you do to
motivate a witness to talk? You want to put the witness at ease.
Try being empathetic. Be understanding of the witness' position.
Elevate the witness by sincere compliments and an appeal to his
sense of justice.
Ask questions that expect and invite a reply.
Listen actively, and indicate by your reflective responses to what
the witness says that you are hearing what the witness is trying to
communicate.
Respond emphatically to the expressed feelings of the witness.
 GETTING A WITNESS TALK CON’T
Provide the witness information that will show the
relevance of your question.
Help the witness with topic selection, but take care
not to make the topic so narrow that the witness will
omit useful information.
Respond with understanding to any  expression by the
witness of reluctance to talk. If a witness asks whether
he should have a lawyer before talking, and you think
he should, don't hesitate to tell him that he certainly
has every right to consult a lawyer prior to discussing
the case with you.
 FRAMING QUESTIONS
This story underscores the importance of asking the correct
question of the prospective witness: A priest who liked to
smoke cigars worried about the bishop catching him smoking
on the job. The priest asked the bishop, "Your Imminence,
may I smoke this cigar while I'm praying?" The bishop
replied, "You may not! Smoking will distract from your
praying."
The priest contemplated the matter, waited a month, and then
asked the bishop, "Your Imminence, while I'm smoking this
cigar, may I pray?" The bishop replied, "Of course, my son.
You may think of God at any time."  Think about the response
you want as you plan the phrasing of your questions. 
 TIPS FOR LAWYERS : FINDING OUT
EVERYTHING THE WITNESS KNOWS
 Interview the witness as soon as possible;
 Before you begin, decide what you need to know;
 Before you begin, sequence the topics you will ask about;
 Isolate the witness during the interview;
 Build a relationship with the witness;
 To the extent you can, conduct a cognitive interview;
 Ask for the raw facts and the witnesses’ source of
knowledge;
 Ask for all the details;
 Ask whether the witness has talked with anybody else
about the subjects you are asking about;
 Cont;
 If the witness is hostile, find out why;
 Be careful about friendly witnesses;
 If you decide to ask the witness to change the story, do it in
a principled way;
 On the other hand if you decide not to ask the witness to
change the story, carefully note all the self-impeaching
things the witness says, but do not point them out to the
witness
 Evaluate the witness’s value in court;
 At the end, ask whether the witness knows anything else
about the case that you have not asked about;
 Take a written statement on the spot.
 WITNESS RELUCTANCE
In some cases witness are reluctant to talk. In such cases interviewer
should know the reasons for reluctance and think about possible ways out.
Some reasons for witness reluctance:
•The witness believes your client is guilty and doesn't want to provide information
that might help the client get out of the jam.
•The witness doesn't want to get someone else (including himself) in trouble.
•The witness doesn't want to say anything that might hurt the complaining
witness, e.g., the alleged "victim."
•The witness doesn't want to admit that he wasn't paying attention.
•The witness doesn't want to undergo the stress of having to publicly tell his story
in a courtroom in front of a judge and trial jury.
•The witness may be embarrassed by revealing sensitive or personal information.
 REASONS FOR WITNESS RELUCTANCE CON’T
• The witness may be under the belief that s/he is not permitted to talk to
the defense lawyer or the defense investigator.
• The witness may not be comfortable revealing information to the
particular interviewer because of characteristics of the interviewer, e.g.,
sex, race, attitude, demeanor, age, language, etc.,
• The witness may not want to think about the act, event, or condition
because it is emotionally painful.
• The witness may not want to lose time or money by getting involved in a
court case (just like some people avoid jury service).
• The witness may believe that her information is irrelevant.
 REFERNCES
• See article 74 Evidence Law on forceful calling on a witness
• See article article71 and 72 Evidence Law
• Hearing of witnesses and who can not be witness, articles 67-73 of
Evidence Law
• See articles 66-69 of the new penal code
• Article 153 (6) Criminal Procedure
• See CCLAP on witnesses and testimony
• The east African court of justice rules of procedure 2013
• ICC Rules of Procedure
• ICTR rules of procedure and evidence
• African court on human and peoples’ rights, rules of court
• ILPD, Interviewing and Negotiation Course Notes
• David Luban, Lawyers and Justice : An Ethical Study, 1988
• GC Marnewich, Litigation skills for South African Lawyers, 2003
• Weblinks
THANK YOU