• What is client's intelligence and their personality?
• Will they give away the farm?
  • I had a client that was accused of molesting a young girl at a day care center. He could not have done it. He was out-of-state at the time. Believing that law enforcement was really there to get the truth, he took all his information to the authorities and "proved" to them it was impossible for him to be guilty of what they were accusing him of. He presented them with motel bills, restaurant receipts and gas bills. They thanked him for coming in and then went right behind his back to the child and told her, "We need you to give us another date." "He was not here when you say it happened." The child provided another date and the accused had no alibi. That was all done before I was retained and the very simple lesson is, "Do not give away your defense." Some people have a desire to tell everything they know. Those people should not talk to authorities.

• I am trying to gain as much information as I can about the allegations.
• I am trying to get social services or the authorities to go beyond their position of authority. As a perfect example; I had a prior case where my client, a very influential man in Texas, was being accused of molesting his granddaughter. The DHS investigator was obsessed with the case. What a feather in her cap if "she" burned my client. In that case, my client called me and said the DHS investigator contacted him and wanted to interview him and his wife. He said he had talked with his attorney and been told not "No, but hell no, do not go near those people." I told him I was not trying to come between he and his attorney, but I wanted him to submit to the interview. Texas is a one-party recording state and my client and his wife, a school teacher, were both very intelligent. To make a long story short, they did a number of interviews, without their attorney present and the end result was, the entire case was dismissed because that DHS investigator had gone so far outside her authority she had exposed her entire department to unbelievable liability. In that case, had my client refused to submit to the interview, there is no question that case would have gone to trial. Also, had we not taped all interviews, we would have had nothing of substance to hand them which resulted in his dismissal. When I am involved in a case, I am simply trying to turn the tables and attack with the same ammunition they are trying to attack my client with and to learn as much as I can about the case against them.

• Secretly recording a conversation is more or less a safety net. If you are talking to someone and they tell you something, the hope is that they will also say the same thing at a later time, so a tape served no purpose other than to possibly refresh you as to the entire conversation. If, however, someone says something important and later changes what they said, a tape is possibly the only defense you may have.
• If you do record conversations to which you are a party, regardless of whether or not they are in person or on the telephone, there are certain guidelines you need to know and follow:
  • I recommend a "tape" recorder instead of a "digital" recorder. The reason is, when using a digital recorder you normally have to transfer your voice files to a computer and then burn them to a CD. My concern is that during all that process, would there be an affective argument that the "conversation" could have been "tampered" with? With a "tape" recorder, you simply record a conversation and put that tape away as the following explains.
  • When using a "tape" recorder, use one tape for one conversation. Many people attempt to put as many conversations as possible onto a tape. Very unwise. If the tape ever has to be used as evidence, the other side is entitled to the entire tape and you do not want other conversations made available to them, so one conversation per tape. That is something to also consider when using a digital recorder. What other voice files would the other side get and could any have a negative effect on you or your case?
  • When you have a tape completed, it is a good idea to "break" the small "flange" on the side of the tape so it cannot be recorded over. Take that tape and put it into an envelope and seal it. Write a short description on the envelope, such as the date of the recording, the parties involved and a very short synopsis of the conversation. In the end, you may have many tapes and it is vital to be able to retrieve the one you may need without having to "listen" to the tapes to find the one you want.
  • Once the envelope is sealed, "lock" it away somewhere so that it would not be possible for anyone else to access it. The tape must "maintain" a proper "chain" of evidence to be acceptable. You recorded the tape, you removed it from the recorder, you sealed the tape in a envelope, you locked it away and you brought it to court. In all that time, you have had absolute possession of the tape and it was not possible for any third party to access it or alter it in any manner. Unless that is strictly followed, you run the risk of the other side being successful in keeping the tape out completely.
  • Again, assure that there is no recording of "any" parties involved in a conversation that "you" are not a party to, otherwise, as I have said, you open the door quickly to civil and criminal liability for yourself. Also, keep in mind that video recorders are held in the same light. You may be able to "video" other parties without their knowledge, but "not" audio. The issue is, "the expectation of privacy." You cannot invade that or again, "you" could be subjected to civil and criminal liability and obviously, no court would accept your tape as evidence.
  • Again, as I said above, making a recording amounts to nothing more than establishing a true record of exactly what was said. If the person you are talking with says the same thing months later that they said when the recording was made, the tape served no purpose, however, if what they said later was not consistent with what they said at the time you recorded them, the tape serves as rebuttal.
  • Never, under any circumstance, let anyone know that you are video or audio recording. Many people think it is to their advantage to "let" other parties know what they are doing in an effort to "keep" them straight. That does not work. Basically, you get nothing when the other party is aware they are being recorded. They will refuse to say things they may well say if they are unaware of the recorder and, in the end, you wind up with far less than if it had been done properly. I have seen so many individuals involved in these cases "thrill' themselves by "letting" the person they are talking with "know" that they are taping the conversation. Evidently, it makes them feel like they are in control, but it accomplishes nothing and should not be done. Build the case silently and in secret.
  • If you are recording audio conversations with anyone, in person and not on the telephone, make sure that you thoroughly test your equipment first. In some cases, when a tape reaches the end, the recorder will give off a loud tone sound, which could result in extreme embarrassment. In addition, test the recorder for it's ability to pick up conversations properly. I have seen "excellent" interviews conducted where the recorder was in a pocket in such a manner that either it did not pick up the parties or the sound of the microphone brushing against material was the only thing that was heard. Simply put, test before you attempt. I have actually had some clients who taped a recorder to their leg and ran a power microphone up through their clothes and down their shirt sleeve. The quality was perfect. Use your imagination.
  • One final comment and the perfect example of why I strongly recommend recording. I have had clients in the past who received unexpected telephone calls where the caller stated, "Now, I am going to share this with you, but I never said it and if anyone asked me about it later, I will deny it," and then proceed to tell the client things that would have blown their case apart. When that conversation was taped, they had something. When it was not, they had absolutely nothing. The worst case I have seen was where a client's daughter, who had accused him of molesting her, called and apologized, then later denied she ever made that call. It was not taped. What a huge mistake that was. "Anticipate the unexpected."

• You are there with an attorney because the DHS employee will never say anything that could make them liable.
• You show them a recorder. Most will tell you they will not allow the interview to be recorded. Some will, but again, they will not say anything that makes them liable. The reason I bring this up is, I have seen so many people get such a thrill at throwing a recorder down in front of the person they are talking to, as if to threaten them. That is childish and accomplishes nothing.

• If you go to their location, wear casual clothes, not a suit and tie. I don't want you "looking" professional and confident. I want you to appear to be nervous. In other words, to them, you are nervous and they run the show.
• No matter what is said, be polite. Remember, you are on that tape too, that is if you are in a one-party recording state.
• Do not lose your temper, regardless of the reason.

• Do not "GUESS" at any question they ask you. A great deal of their questions will amount to "Why do you think?" The perfect example is, "Why would the child, or children say this if you did not do it?" The correct answer is, "I have no idea." "I am hoping that you are able to answer that question quickly during your investigation so we can get this behind us and get on with our lives." Don't "speculate" on any answer, period.
• Interviewers expect you to talk, talk, and talk when they ask, "Why would the child say this if it were not true?" and they know you cannot answer that question. Their hope is that as you talk, you will say something they can use against you and that is why the correct answer is, "I don't know."
• Now, one of the most important things that you need to understand in everything I am discussing. Never lose sight of the fact that you submitting to an interview to gain information and not give it. What I am really looking for with my clients is for them to frustrate their interviewer and that is not as dificult as it may seem. Interviewers are used to asking "buzz" questions, such as "Why would the child say that if it did not happen?" They are used to having the people they talk with go on an on in giving an answer. What they are not used to is someone coming back with a fast and instant response such as "I don't know," especially when they person they are interviewing is extremely polite. That can tend to throw may interviewers off and when that does happen, some of them tend to get frustrated and say things they never should say. That is exactly what I am looking for. I am in hopes they will either say something to assist us in building a defense, or they will say something that is detrimental to them personally. This is simply a strategy I use in building a defense for a client and, as I said earlier, if you are going to be successful, you must learn to "Think outside the box."
• Give them your address and contact telephone numbers and tell them how to contact you if they ask. You want to give the total and complete appearance of cooperation, so don't even hesitate in providing that if they want it.

• Get more information than you give.
• Be polite and do not argue.
• Flat out say you have never done anything inappropriate to any child.
• Make sure the recorder works properly.
• Don't guess or speculate on anything.
• Don't be afraid to act nervous. That makes them feel superior. That is exactly what you want.
• Above all, remember, whatever you say and whatever they say could be very critical later so keep that in mind. Also keep in mind, the other side will have a right to the entire tape and everything on it, should it ever have to be used.

• The last thing I want to do is alarm you but, it is at least possible that as soon as your interview is complete, you might be arrested. That does happen so at least understand that is a possibility.
• If that were to happen, simply make necessary preparations to bond out. If they even try to indicate that you should have a high bond, or no bond, because you are a flight risk, your immediate argument would be, "Your Honor, I voluntarily went in for the interview and they ambushed me." "If I had been any risk, I never would have gone in."

• If you cannot record, be careful of meetings and try to have some form of witness present. In a prior case, where the interview was not recorded, when the police told the accused what the allegations were, he said, "Whew, if that's the case, I need help." He was referring to an attorney. The detective testified that he was asking for "professional counseling" which, to a jury, was a admission of guilt
• If you are concerned in the least, do not allow any interviews without an attorney.
• If you do submit to an interview, again, no guessing, no speculating and do not hand them your defense. Again, you are there to "learn" and not to give away your defense.
• I do not suggest or recommend that anyone even attempt anything that I have suggested above that I have not met or do not know. As I stated previously, this is simply a strategy that has worked well for me and many of my clients, but also understand that I have had clients that I would never expose to a lone and unprotected interview with anyone. It depends entirely on the client themselves, their intelligrence and their personality.

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