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Interviewing Uncooperative, Recalcitrant, or Reluctant Witnesses

Prompt and thorough witness interviews are critical to any effective investigation in an organizational setting. Witnesses provide essential facts and insights into all cases, even when some cases may appear to rely solely on the existence of documents. The goal of any witness interview is to obtain the maximum amount of relevant information possible. Achieving this goal requires skill, ability, and practice, especially when a witness appears to withhold information, give vague answers, feign memory loss, or is hostile and confrontational.  

Uncooperative Witnesses

In a corporate investigation, it’s not uncommon to encounter witnesses who are uncooperative, recalcitrant, or reluctant. Such witnesses can derail the investigative process. Occasionally, a witness will refuse to be interviewed about the incident. The refusal may reflect nothing more sinister than the witness’s busy work schedule or a reluctance to “get involved.” 

On the other hand, there may be underlying currents of bias or ill will that could produce less than truthful testimony. The investigator’s challenge is to discover the reasons for their reluctance, overcome their objections, and continue to seek the information necessary to conduct a thorough, fair, and objective investigation. 

Getting to the Root of the Issue

For example, take the setting of a corporate headquarters of a retail chain during an investigation involving a sexual harassment complaint against a senior manager. When they are questioned about incidents of inappropriate behavior, the manager may become aggressive and try to intimidate the investigator by asserting their high position and tenure in the company.   

The investigator must maintain a neutral tone and demeanor to overcome such hostility. By remaining calm and professional, the investigator can redirect the focus to the fact-finding mission of the interview without getting drawn into a power struggle.

Interviewing Uncooperative

Establish a Safe Environment

It is also common for investigators to interview a sexual harassment victim who may be reluctant to talk about the incident. For instance, a junior employee, Jane, may hint at inappropriate behavior from a senior colleague but hesitate to provide details. When approached for the interview, she seems anxious, often looks away, and gives short, vague responses. Jane may be worried about retaliation, her reputation, and being labeled or treated differently after coming forward. 

The investigator must establish a safe environment for the victim and stress the importance of her well-being and dignity throughout the process. The interview should be confidential, except for those who need to know. Jane should also be reminded about the company’s non-retaliation policy and that she will be protected from retaliation for coming forward. Open-ended questions, such as, “Can you tell me more about your interactions with Mr. X?” or “How do you feel when working on projects with him?” are better than such direct questions as, “Did Mr. X sexually touch you in his office?”

A Checklist for an Interview with a Resistant or Hesitant Witness

Understanding the reasons behind the behaviors of a reluctant or hostile witness can help investigators obtain the necessary facts more effectively. Sometimes, reassurances about confidentiality or protection might be needed; in other cases, reminding witnesses of the potential legal consequences can be effective, especially when they have a contractual obligation to cooperate with a company’s investigation. 

Although the facts and circumstances of each investigation will dictate the best way to proceed, the following checklist can assist in getting ready for an interview with a resistant or hesitant witness.

1. Prepare and plan for the interview:

    • Gather all available information related to the case, including the complaint, documents, emails, electronic databases, and employee handbook. Identify who may be likely witnesses.
    • Understand the processes, organizational roles, and surrounding circumstances of the complaint.  
    • Determine the objectives of the interview:  what fact questions should be resolved, what company policy is involved, and what laws and regulations may impact the interview.
    • Consider the order of interviews from a fact-finding perspective and in anticipation of others finding out who was interviewed.  
    • Evaluate the probable reliability of the subject’s information and any factors that may consciously or unconsciously influence, color, or distort such information.
    • Create an outline of questions to which the answers are already conclusively known and can be used to test the subject’s truthfulness.

2. Engage and explain:

    • Establish a comfortable, private environment to make the interviewee more willing to speak. 
    • Begin with a warm, non-confrontational introduction.
    • Clearly explain the reason for the interview, the investigative process, and the interviewer’s role.
    • Maintain honesty about the process and potential outcomes.

3. Build rapport with the interviewee:

    • Start with neutral topics to establish a connection. For instance, ask about the interviewee’s work experience.
    • Use active listening, nodding, and minimal encouragement such as “Uh-huh,” “Go on,” or “I see” to encourage the person to keep talking.
    • Use a mirroring technique: Repeat the last few words the interviewee has said. This technique can encourage them to expand upon their statement without feeling like they are being interrogated.
    • Use silent pauses: After an answer, pause before asking the next question. Often, people will rush to fill the silence and might divulge more information in the process.

4. Obtain relevant facts within the witness’s knowledge:

    • Let the interviewee give their version of events without interruption.
    • This should be a free recall phase, where they can narrate their perspective or story.
    • Use open-ended questions. 
    • Avoid leading or suggestive questions that may make them defensive.
    • Ask the witness what documents or evidence they have that relate to the case.  

5. Stay calm, patient, and empathetic:

    • If the witness becomes agitated or emotional, remain calm and give them time to compose themselves.
    • Avoid showing signs of frustration, irritation, or impatience.
    • Recognize and validate any fears or concerns they might have.
    • Use phrases like, “I understand why you might feel that way.”
    • Remember, accusatorial interrogation methods seek to establish control, and information-gathering methods seek to establish rapport.

6. Challenge inconsistencies:

    • Start with broad questions and slowly narrow them down to specifics. This can help in getting a comprehensive view before exploring the details.
    • Only address inconsistencies after the interviewee has given their full account.
    • If you notice contradictions in the witness’s statements, point them out subtly, asking for clarifications rather than directly accusing them of lying.
    • If available and appropriate, show evidence (video, document, or other tangible item) that contrasts with their statement. Showing a document, picture, or other evidence can help jog the interviewee’s memory.

7. Document and clarify:  

    • Summarize the main points of the interview to ensure clarity.
    • Allow the interviewee to add, change, or correct any information. 
    • The witness should be unable to determine at the conclusion of the interview your personal opinion concerning him or her or concerning the subject of the interview.
    • Clearly outline what will happen next in the process.

8. Be accurate about confidentiality and protection:

    • Do not promise confidentiality, but carefully explain your role, and that information will be shared only with those who have a need to know. 
    • If the interviewee is a whistleblower, explain the need for confidentiality and protection against retaliation.  

9. Assess the credibility of the witness based on candor and honesty:

    • Evaluate the consistency of the witness’s statements with other facts that have been gathered.
    • Notice any significant variations in recounting the same event or if a witness provides overly rehearsed or identical statements across different interviews, which may be signs of fabrication.
    • Weigh how the witness reacted to recognized contradictions in their statements.  A credible witness will typically stand by their truthful account, whereas a witness who continually changes their story, becomes overly defensive, or avoids answering directly may be less credible.  
    • Consider that a truthful witness may forget minor details, yet they’ll generally be consistent about significant events. On the other hand, a dishonest witness might provide overly vague answers or get caught in the minutiae, often adding unnecessary details to make the story seem more believable.

10. Complete post-interview actions:

  • Finalize your notes and ensure they’re stored securely.
  • Review the information and assess its reliability and relevance to the case.
  • Identify gaps in the gathered information thus far. 
  • Plan the next steps in the investigation or process.
  • Be careful and considerate about what, when, and how you disclose information to participants in the investigation.
  • Consider whether a follow-up interview is required.  


Arlen, J. & Buell, S. (2020) The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement, 93 S. Cal. L. Rev. 697

Guerin, L. (2022) The Essential Guide to Workplace Investigations, 6th Ed., Nolo.

Lawrence-Hardy, A. (2023), Practice Note:  Workplace Investigations: Step-by-Step Guidance

Lawrence-Hardy, A. (2023), Practice Note:  Interviewing Employees in Workplace Investigations

McElhaney, J. (2011)  It’s a Gift: Evasive witnesses are doing you a favor if you know to take advantage  97 A.B.A.J. 24

1 Art of Advocacy: Preparation of the Case § 3.04 (2023)

1 Williams on Mississippi Evidence, § 6.39 Witnesses: Bias, Prejudice, or Interest (2022)

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