An interrogation is one of the most common investigative actions, the purpose of which is to obtain (gather) evidence or to verify evidence already obtained in a specific criminal proceeding.

A person summoned for questioning may have one of three statuses provided for by the Criminal Procedure Code of Ukraine for this investigative action: victim, defendant, suspect, or witness.

In this article, we will discuss aspects of questioning a witness in criminal proceedings, specifically: a company executive or chief accountant.

The company’s CEO and chief accountant are key figures in a business entity, as they play a central role in ensuring its operation and are responsible for making both strategic and operational decisions. Therefore, their responsibilities are multifaceted and encompass nearly all areas of the company’s operations.

Accordingly, participation in questioning must be preceded by thorough witness preparation, which accounts for 90 percent of success.

What do we mean by “successful results” of a witness examination?

It all depends on the specific situation, but, in general, the main objectives are:

• to prevent the witness’s procedural status from changing from witness to suspect as a result of the questioning—that is, to prevent subsequent criminal prosecution;
• to minimize the witness’s future involvement in investigative and procedural actions—that is, to ensure the investigator has no further interest in the witness as a source of information relevant to the pretrial investigation.

The process of preparing for questioning can be broadly divided into three interrelated and equally important stages:

• gathering information about the reasons and circumstances that served as the basis for the interrogation;
• simulating and rehearsing the investigative procedure itself based on the information gathered;
• practicing self-control over the emotional state of the future participant in the interrogation.

Typically, a witness is summoned by a subpoena, which specifies, among other things, the procedural status of the summoned person and the number of the criminal proceeding under which the summons is issued.

In most cases involving the investigation of economic crimes, the questioning of witnesses is preceded by a series of investigative (search) actions aimed at locating and seizing items and documents that record the circumstances of the criminal offense and which will subsequently serve as “source material” for the questioning.

These investigative (search) actions may include an inspection, a search, or temporary access to items and documents.

The content of an investigating judge’s ruling authorizing a search of a person’s residence or other premises is not typically made publicly available in the Unified State Register of Court Decisions; however, by using the criminal case number specified in the summons, one can verify the existence of such rulings, which may indicate that the relevant investigative (search) actions have been conducted.

Rulings authorizing the search of a person’s residence or other property, as well as temporary access to items and documents, are generally recorded in the Unified State Register of Court Decisions. The reasoning section of these rulings provides a number of details important for preparing for questioning:

• the facts of the case and other factual circumstances of the criminal offense;
• the individuals and legal entities involved in the criminal offense;
• the items and documents of interest to the investigator and their significance in the criminal proceedings.

For example, if an investigating judge’s ruling grants temporary access to the financial and business documents of a fictitious company “X,” this suggests that the investigator will be interested in the circumstances of your company’s interactions with that legal entity. Verifying such details allows you to adjust your testimony in advance and avoid contradictions with materials already in the possession of the pretrial investigation authority.

Another, equally important, source of information may be the business partners with whom your company interacts. After all, it cannot be ruled out that investigative (search) actions have already been conducted involving them, and they may possess information that could be useful in preparing for questioning. Therefore, maintaining close contact and exchanging information with business partners serves as a safeguard against unexpected surprises from law enforcement agencies.

Next, one can proceed to modeling and rehearsing the investigative action itself.

To begin with, you should analyze the information gathered, determine the actual involvement of the business entity and its officers in the criminal offense, assess the availability of evidence of their involvement—whether such evidence is already in the possession of the pretrial investigation authority or can be obtained by it— and anticipate possible consequences and the further course of events.

Next, it is necessary to anticipate the questions that may be asked of witnesses and prepare responses to them. If this task is approached thoroughly and carefully, most of the investigator’s questions will not come as a surprise to the witness.

There are also certain guidelines for answering the investigator’s questions during questioning, specifically:

• when answering questions, you should not provide unnecessary information, details, or circumstances that are not directly asked about. If possible, it is better to answer briefly with “yes” or “no,” as unnecessary information leads to unnecessary questions.
• In situations where the investigator asks about certain “uncomfortable” details and circumstances, it is advisable, on the contrary, to resort to a vague, broad description of well-known events, citing legal provisions and publicly available documents, following the principle of “talking about everything and nothing in particular.”
• Human memory is a complex cognitive process that allows us to remember certain facts and events for a short time, while others remain with us for a lifetime; therefore, it is entirely natural for a witness to recall some circumstances and be unable to recall others with precision.

The skillful application and combination of these three simple principles will allow a witness to emerge with “minimal damage” from most unpleasant situations that may arise during questioning.

For example, to a direct question such as, “Did you sign a contract with Company A, LLC on March 15, 2023?” it is best to answer briefly: “Yes” or “No,” without providing additional details about the event.

And in response to a hypothetical question such as, “Why didn’t the company consider LLC ‘B’s’ proposal to supply products with similar characteristics at a lower price?” it is advisable to provide a general description of the market situation, the need to ensure the company’s economic security, the criteria for evaluating the reliability of counterparties, and so on.

However, it is important to ensure consistency in the statements of all witnesses, including those who may be called after the questioning of the CEO and the chief accountant. In other words, it is worth considering who else the investigator might summon for questioning—whether employees of your company or business partners—to clarify or verify the testimony you have provided. Although sometimes contradictions can, on the contrary, work in your favor, the devil, as they say, is in the details.

Quite often, the investigator summons the CEO and the chief accountant for questioning on the same date, with an hour’s difference between their appointments. In such a case, you should break up this inconvenient tandem of interrogations by invoking the circumstances provided for in Article 138 of the Code of Criminal Procedure—“Valid reasons for a person’s failure to appear when summoned.” Paragraph 8 of Part 1 of the aforementioned article provides room for “creative maneuvering.”

The idea lies in what is known as “reconnaissance by combat,” which will allow the next witness to better prepare for participation in the investigative proceedings. This tactic helps avoid parallel pressure from the investigator and allows for the coordination of testimony among participants in the criminal proceedings.

In this context, it is more advisable for the head of the business entity to be the first to participate in the questioning, given the division of duties and authorities. As noted above, the director is responsible for the overall operation of the business but may afford himself a certain degree of “incompetence” in highly specialized areas of its operations that require specific knowledge and skills—for example, accounting, logistics, contract management, financial transactions, etc.

However, a lack of knowledge on the part of an accountant or other specialized professional regarding matters directly related to their functional duties and activities at the company will raise entirely understandable doubts on the part of the investigator as to the veracity of the testimony provided.

While following the advice provided above, one should also not forget the obligation of a participant in criminal proceedings not to disclose information known to them regarding the pretrial investigation, in connection with their participation in such proceedings, without the permission of the investigator or prosecutor (Art. 222 of the Code of Criminal Procedure).

However, liability for disclosing information regarding operational-investigative activities or the pretrial investigation, as provided for in Article 387 of the Criminal Code of Ukraine, arises only if the person has been warned in accordance with the procedure established by law regarding the obligation not to disclose such information.

Such a warning must be given by the investigator or prosecutor during or after the conduct of an investigative or procedural action, and it must be recorded in a protocol or other document, such as a written acknowledgment.

Finally, another important aspect of preparing for an interrogation is addressing the emotional state of the individual during the investigative action.

An interrogation is not merely a matter of legal formalities but also a profound psychological process. An experienced investigator skillfully interprets the external signs of a witness’s emotional state. Facial expressions, gestures and body movements, voice and speech, physiological manifestations, and behavioral patterns reveal just as much information about a witness as financial reports and bank statements, and a skillful combination of analyzing the emotional state and the body of evidence allows the investigator to tailor their questions, identify, and exploit weaknesses.

Nervousness is a natural emotional state that arises when a person faces an unusual or unfamiliar situation; therefore, it is not surprising that a witness may feel nervous during questioning.

However, one should avoid excessive emotional displays of nervousness, stress, or uncertainty, such as a trembling voice, rapid speech, or stuttering; tense or trembling lips; frequent blinking; or consistently avoiding eye contact.

Emotional self-control during questioning is not just about “staying calm,” but also about the ability to conceal outward signs of stress and other compromising emotions.

Thus, thoroughly practicing self-control will help minimize risks during questioning.

In this article, we have briefly highlighted what we believe to be the three key aspects of preparing a company’s CEO and chief accountant to testify as witnesses. Understanding and applying these principles will help significantly reduce the risk of negative consequences following participation in this investigative proceeding.

However, each of the stages of preparation for questioning outlined above requires more detailed examination and could be the subject of a separate article.