4.4 Lay Witnesses

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

4.4 LAY WITNESSES

4.401 Pretrial Interviews Generally. Pretrial witness interviews are the building blocks of successful defenses. Counsel should make detailed notes during such interviews or immediately thereafter.

The single most important tactic for conducting a successful interview is to place the person at ease. It is better to gather information conversationally and let witnesses casually recollect the events in their own words because asking a set list of questions without deviation may prevent the witness from revealing some important aspect of the events. Because it is important at this stage to learn the facts exactly as the witness recalls them, it is sometimes preferable for counsel to appear uninformed during the interview.

4.402 Interviewing the Client. The client is generally the first person interviewed by counsel, and he or she should be able to provide at least a brief overview of the facts. Counsel should find out why the client initially came into contact with law enforcement officer(s), the time of the stop, the conditions of the road, the lighting, the questions asked by the officer and the answers given, and the relative condition of the defendant. The client should also relate whether a field Alco-Sensor test (sometimes called a preliminary breath test or "PBT") was offered or taken (as well as the results, if known to the client) and whether the client was asked to perform any field sobriety tests. ¹⁹ Counsel should ask for the details of these tests, including the order in which they were performed.

It is important to inquire about the...