La. Admin. Code tit. 41 § II-305

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-305 - Written Statements

A. Procedure. The best means for making an accurate and complete record of the information obtained in the investigation is the sworn statement. A sworn statement (affidavit) is a written statement of facts given by a witness or suspect who states under oath or affirmation that the contents of his statement are true. All persons who are detailed to conduct the investigation are authorized by LCMJ Article 136 to administer oaths in conjunction with sworn statements taken in the course of a preliminary investigation. No special form is required to make this sworn statement. If the statement is to be taken from a suspect, DA Form 3881 (Rights Warning Procedures/Waiver Certificate) should be completed and signed by the suspect before taking his statement. A copy of DA Form 3881 is Figure 5-7, which may be used with appropriate changes in the body from "UCMJ" to "LCMJ". [See paragraph 1-10.] After a suspect has signed the DA Form 3881 and waived his rights to remain silent, his statement may be taken on DA Form 2823 (Sworn Statement). DA Form 2823 (Sworn Statement) may also be used for the sworn statement of a witness. Since the witness is not a suspect, this latter form has no provision for a warning of his rights. The language of the witness or suspect should be used throughout the statement even though it may be vulgar, grammatically incorrect, or illogical. This insures that the writing is the witness's statement and not the composition of the investigating officer. The statement may be written in narrative form or story form, in question and answer form, or both. An appropriate oath for completing the sworn statement may be administered as follows:

1. "Do you swear (or affirm) that the statements you have made are the truth, the whole truth and nothing but the truth (so help you God)?"

2. The person administering the oath must sign his own name.

B. Guidelines for Written Statements. Sworn statements should be requested primarily from witnesses who have direct, personal knowledge of the facts. If the information offered was told to a witness by Sergeant A, the investigator should obtain a sworn statement from Sergeant A. Opinions and conclusions, without offering supporting facts, reduce the reliability of a sworn statement. The investigator should attempt to obtain the facts upon which the opinions are based, and encourage the witness to substitute facts for his opinions. The witness should initial the written statement at the beginning and the end of each page, at each erasure and correction, and where otherwise indicated on DA Form 2823. The purpose of initials is to avoid any questions of tampering after the statement has been completed.

La. Admin. Code tit. 41, § II-305

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2356 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).