Those who face investigative interviews before the National Transportation Safety Board (NTSB) should be fully aware of the applicable rules and regulations.
Key topics relating to NTSB investigative interviews include the right to legal representation, the opportunity to cite Fifth Amendment privileges and the need to give accurate testimony.
The National Transportation Safety Board (NTSB) is the federal investigative agency generally given priority in the investigation of all civil aviation accidents and significant accidents in the surface modes. Over the course of the typical NTSB investigation, there are a number of opportunities for NTSB investigators to interview employees of the airline, aircraft manufacturer, component manufacturer, airport fire department and other entities associated with the accident. These interviews can occur very early in the investigation, including at the accident scene, later at a company's headquarters, during a deposition to which the witness has been subpoenaed by the NTSB or during an NTSB public investigative hearing in Washington, D.C.
Understanding the rules pertaining to NTSB investigations — including those involving legal representation, transcripts, testimony accuracy and Fifth Amendment privileges against self-incrimination — is critical.
Representation Before the NTSB
Some of the rules applicable to NTSB interviews are codified in NTSB regulations and others are not. As a starting point, each witness has a right to representation during an interview: the witness "has the right to be accompanied, represented, or advised by an attorney or non-attorney representative." 49 C.F.R. §831.7, 845.24 (2012)
If counsel for an airline or manufacturer asks the NTSB investigator whether the "company" can send company counsel to accompany the witness into the interview room, the NTSB's response is likely to be "No." The election is not the company's to make, but belongs to the individual witness. If the company makes available to a witness in-house counsel, company-retained outside counsel, or a company co-worker or supervisor to assist as the employee's representative in the interview — and the employee elects to accept the offer — he or she may inform the NTSB investigators and be accompanied by that person. This might sound like semantics, but to the NTSB, the issue is fundamental and will affect whether a particular individual can "represent" a witness during the interview.
The NTSB normally creates transcripts or summaries of witness interviews. As a result, the witness is creating a record that will be available to the public, quite likely identifying the witness by name. The NTSB posts the transcripts or summaries under the witness's name in the docket for the investigation, and these public dockets are available through the NTSB's public website. Anyone connected to the Internet will have access to these transcripts or summaries.
Avoiding Legal Pitfalls
Witnesses should fully comprehend the legal nature and potential ramifications of their statement to NTSB investigators. Even if a witness is not sworn in by the investigator, he or she is making a formal statement to a federal investigator in the performance of his or her official duties. Consequently, witness statements given during an NTSB investigation, including those made over the phone, are governed by 18 U.S.C. §1001, which makes it a criminal offense to knowingly give false testimony or provide false records in such proceedings.
In addition, witness statements and related transcripts and summaries are not privileged. Some former military aviators who are familiar with "safety" investigation boards conducted by the military may believe that the NTSB's interviews fall into this category — meaning the statements are likewise protected by the well-recognized safety privilege, making them privileged and inadmissible in other proceedings. Not true. Even though an NTSB investigator may inform the witness that the interview is for safety purposes or to help prevent future accidents, the statements may still be used in other proceedings, including criminal prosecution and civil litigation. Witnesses may therefore invoke their Fifth Amendment privilege against self-incrimination, assuming there is a valid basis for doing so.
It is essential for companies and individual witnesses to understand the implications of an NTSB interview, including use as part of the NTSB's public investigation and potential admissibility in other proceedings. A witness who agrees to an interview should not underestimate the importance of providing precise and factually correct answers, and should not provide a basis for the NTSB investigator to question the veracity of their responses. Naturally, if a witness is unable to answer precisely and factually, he or she may and should freely admit a lack of direct knowledge, faded memory, unfamiliarity with the subject at hand or any other reason that prevents giving an accurate answer.