Called in for questioning as a witness: what to do before and during

A call from an investigator rarely comes at a convenient moment. Most often it sounds like this: "Come in tomorrow, we need to ask you a couple of questions as a witness, it is a formality." It is not always a formality — and the difference already shows in how the summons is issued.

Check how you are being called in

A witness is called by a written summons. It states who is calling you, where, when, in what capacity, and the consequences of not appearing. The summons is handed over against signature or sent by post; a call by telephone is also allowed — but then ask the investigator to dictate his details and the case number, and confirm exactly what capacity you are expected in.

This is not pedantry. Status determines the scope of your rights. A witness must appear and give evidence; refusing to testify and knowingly giving false evidence both carry criminal liability. A suspect is not obliged to say anything at all. If you are invited "just for a chat, off the record", that is not an investigative action and you are not obliged to attend.

A witness is entitled to an advocate too

Far from everyone knows this. Article 189(5) of the Criminal Procedure Code expressly allows a witness to attend questioning with an advocate. That cannot be refused, and where an advocate has been engaged the investigator may not put questions to him but must record his statements in the protocol.

Why bother if the person has done nothing wrong? For three reasons. First, from the questions the advocate can see which version the investigation is testing, and whether it is moving in your direction. Second, he watches the protocol — making sure what is written down matches what was said. Third, if your status changes right there in the office, defence counsel is already beside you.

A change of status is not rare. A person arrives as a witness and, after a few answers, is notified that he is a suspect. From that moment the evidence already given does not go away.

Article 51 of the Constitution: how to use it

No one is obliged to give evidence against himself, his spouse or close relatives. The circle of close relatives is defined in the Code: spouse, parents, children, adoptive parents, adopted children, brothers and sisters, grandfathers, grandmothers and grandchildren.

An important nuance: refusing to give evidence against yourself is not the same as refusing to answer every question put to you. Invoking article 51 in response to a question about where you work is pointless — it looks like an attempt to hide the obvious and in practice only increases interest in you. It is more sensible to answer neutral questions and to use the right where an answer really could be turned against you.

How to conduct yourself during questioning

Answer the question that was asked, not the one you thought you heard. Do not fill in gaps for the investigator and do not relay assumptions. "I do not remember" is a normal answer if you genuinely do not: no one is required to remember events from two years ago, and an inaccuracy will later turn into a question about the reliability of everything else you said.

Do not sign blank or partly completed forms. Do not accept wording you did not use, even if the investigator says it is "shorter that way". The legal language in the protocol is the investigator's language, but the meaning must remain yours.

Questioning may not run for more than four hours without a break, and no more than eight hours in a day, with a break of at least one hour. That is not a recommendation but a requirement of article 187 of the Code.

The protocol: read all of it

The most common mistake is signing without reading, because you are tired and want to leave. Read the protocol in full, including what is printed small and at the end.

You are entitled to require additions and clarifications to be entered, and to write your remarks in your own hand. If the investigator refuses to change something, the remark still goes in — in the section for remarks, in your handwriting. Each page is signed separately and blank spaces are struck through. You are not always entitled to a copy of the protocol, but no one can stop you recording its substance — for example, by copying out the key wording.

If you are called in on company matters

Questioning an employee or a manager in a case connected with the business is a separate situation. Here the witness is almost always the holder of information about other people, and any careless formulation becomes part of the case against colleagues.

In such matters we always recommend attending with an advocate and reconstructing the chronology beforehand: which documents you signed, over what period, who you reported to, where your authority ended. Not in order to conceal anything, but to avoid getting lost in dates and creating a problem out of nothing.

This material is for information only and does not replace advice on a specific matter.

If you or your employees have been called in for questioning, write to us. The first consultation is free where an agreement is signed. More about our work on criminal matters is in the practice section.

Dmitry Malyutov — advocate, chairman of the Kovalev, Malyutov, Tsypkalo & Partners Moscow Bar Association