by MAC-3
said the Supreme Court. “Miranda itself indicated no talismanic incantation was required to satisfy its strictures.”
When presenting the warnings, use advisement, not admonishment ( California v. Prysock [1981]). In other words, state the four warnings without embellishing them. Merely expressing the warnings is sufficient; to do more is self-defeating. Some investigators earnestly urge the subject to grant permission for the interrogation; other investigators, directly or indirectly, strongly advise the subject not to grant permission. As you give the warnings, use a neutral tone and a matter-of-fact manner. This is not a time to caution, suggest, frighten, or admonish the person in custody.
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When the Miranda Warnings Are Required In 1976, the Supreme Court removed the misconception that the warnings must be given to anyone upon whom suspicion is
“focused” ( Beckwith v. United States [1976]; Inbau et al. 1986).
Rather, the Court said, the warnings are required only when the subject is in police custody.
In an earlier case, the Court had defined “in police custody or otherwise deprived of freedom in any significant way” (the wording used in Miranda v. Arizona [1966]). The Court said that the key elements are “the time of the interrogation, the number of officers involved, and the apparent formal arrest of the subject” ( Orozco v.
Texas [1969]).
Regarding noncustodial interviewing within a police facil-ity, the Supreme Court held that a noncustodial situation does not require the Miranda warnings simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint of freedom of movement, the questioning took place in a
“coercive environment” ( Oregon v. Mathiason [1977]). The Court considered the circumstances of the interrogation when it provided this opinion:
Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.
But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.
Legally, interrogation is defined as asking a question, making a comment, displaying an object, or presenting a police report if
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The Art of Investigative Interviewing
this action calls for a response that may be incriminating. The subtle use of these actions make them “functional equivalents” of direct questions asked during an interrogation ( Brewer v. Williams
[1977]). This means that they, too, are bound by Miranda, but an exception can be found in Rhode Island v. Innes (1980).
If suspects who are not in custody freely consent to be interviewed or interrogated, there is no requirement that they be given the Miranda warnings. If an interviewee begins to confess without being interrogated, let him or her continue without interruption. When the confession has concluded, give the Miranda warnings to prevent any court from holding that custody began at the conclusion of the confession.
Subjects in custody can waive their constitutional rights. This is usually done in writing and signed, but oral waivers will suffice.
Police officers working private or part-time positions are bound by the Miranda ruling. If you are not conducting the investigation as a police officer, the Miranda decision does not affect you unless you are acting in cooperation with the police as a police agent. It’s important to realize, however, that regardless of your role as an investigator, if you compel someone to confess, you are coercing a confession that will not hold up as legal evidence. Even though private security investigators generally do not have to administer the Miranda warnings, they still should not abuse subjects ( City of Grand Rapids v. Impens [1982]).
LEGAL TACTICS WHEN SEEKING A CONFESSION
Be fair and practical when interrogating everyone, particularly suspects in custody. It is vital to avoid saying or doing anything that might cause an innocent person to confess. Do not use coercion, intimidation, threats, promises, or duress to force a confession; such action is neither legal nor acceptable. Intimidation reaps resentment, not truthful cooperation. Such tactics are self-defeating and inappropriate. The following legal tactics can be used during an interrogation:
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Exhibit confidence in the subject’s culpability.
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Present circumstantial evidence to persuade the subject to tell the truth.
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Observe the subject’s behavior for indications of deception.
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Empathize with and help the subject rationalize his or her actions and save face.
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Minimize the significance of the matter under investigation.
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Offer nonjudgmental acceptance of the subject’s behavior.
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Point out the futility of not telling the truth.
Trickery and deceit are often used in interrogations. The U.S.
Supreme Court gave tacit recognition to the necessity of these tactics in Frazier v. Cupp (1969). The Court held: “The fact that the police misrepresented the statements that [a suspected accom-plice] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing thètotality of the circumstances.’”
EVIDENCE COLLECTION AND PRESERVATION
Strict rules govern the handling of all evidence before it is presented in court. The court that ultimately hears the evidence will want to know whether it was obtained legally, who handled it before it reached the court, and how. Does the evidence bear directly on the case, and does it accurately represent what happened? Was it tampered with in any way? Is it tainted? Before you begin to hunt for evidence, you must know what you’re searching for, and that, in turn, depends on the objective of your investigation. If your objective is to prove intent in some criminal, civil, or administrative investigation, you may be looking for documents bearing a certain date or signature. If it is a hit-and-run case, the evidence may be skid marks or broken car parts. When interviewing an eyewitness, you may be searching for what the person heard or saw at the crime scene.
There is a difference, of course, between knowing what type of evidence you are looking for and searching only for evidence that
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suits some preconceived notion of who is culpable. Although having a theory or being guided by probabilities is generally acceptable, twisting the evidence to distort the truth is not. Professional investigators strive to maintain a neutral manner and an open mind so that they can impartially collect all available evidence.
If you obtain an admission or a confession, you will be challenged about how you obtained it. Did you determine that the interviewee was lying based on your intuition and observations?
As you collect evidence, be sure to make every effort to ensure that all evidence is obtained legally. Courts consider who was present, what was said, and how it was said when deciding whether to admit testimonial evidence. If evidence is contaminated by coercive tactics, threats, or illegal promises, we can expect a court to throw it out.
Even though you may collect massive amounts of evidence, not all of it will be pertinent to your investigation. You may interview fifty people and find only two who have useful information.
Details of the other forty-eight interviews should not play a significant role in your report other than a notation that the i
nterviews took place.
All evidence—real, documentary, and testimonial—can become contaminated. Preserving evidence and protecting it from contamination are vital to its successful presentation in court.
REPORT WRITING
Often, reports are official documents that detail how evidence was collected and preserved during an investigation. Hence, they are an important part of the chain of custody.
The technique of report writing can be learned by anyone who possesses two basic qualities: fundamental communication skills and a trained ability to observe. To be a competent investigator, you must write reports clearly so that everyone who reads them will know what you did and why.
Clear expression is not difficult to achieve, but it does take practice. When taking notes and writing your report, stick to the
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facts. A statement is the literal reproduction of the actual words spoken by the interviewee. Be a creative listener, use skillful phrases, and ask questions politely. First listen, then write notes.
Be supportive and encouraging.
There are five basic steps in writing a report (Hess and Wrobleski 1988):
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Gather the facts (investigate, interview, interrogate).
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Record the facts immediately (take notes).
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Organize the facts.
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Write the report.
●
Evaluate the report (edit and proofread; revise if necessary).
Good notes are a prerequisite for a good report, and they share many of the characteristics of a good report. When taking notes, organize your information; then report it in chronologi-cally arranged paragraphs. Keep your writing straightforward and simple.
Characteristics of a Well-Written Report
A well-written report shows that you have done your job and that you recognize your responsibilities to the community you serve.
A well-written report reflects positively on your education, your competence, and your professionalism, and it communicates better than a shoddily prepared report. Well-written reports share ten characteristics (Hess and Wrobleski 1988).
A well-written report is
●
Factual. Facts make up the backbone of all reports. A fact is a statement that can be verified and known as a certainty. Black’s Law Dictionary defines a fact as a thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence. Present your facts, draw your conclusion, and stipulate which is
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which. A well-written report does not contain unidentified opinions.
●
Accurate. Just as there are rules for spelling, capitalization, and punctuation, there are rules for word choice. Ensure accuracy by being specific in your language and by choosing the most appropriate words for each situation.
Avoid jargon, which creates confusion.
●
Objective. A good report is fair and impartial. Subjective writing might be more colorful than objective writing, but it has no place in a report. You can ensure objectivity in your reports by including all relevant facts and by avoiding words with emotional overtones. Specific types of crime require different information, but you will frequently need certain general information. The who, what, when, and where questions should be answered by factual statements. The how and why statements may require inferences on your part. When this is the case, and especially when addressing the question of motive, clearly label your opinions.
●
Complete. A report should give as full an account as possible. To avoid slanting your report, record all possible motives reported to you, no matter how implausible they may seem.
●
Concise. The information you choose to include should be worded as concisely as possible; no one wants to read a wordy report. You can reduce wordiness two ways: (1) Leave out unnecessary information, and (2) use as few words as possible to record the necessary facts.
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Clear. Clarity, one of the most important characteristics of a well-written report, is discussed in detail below.
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Mechanically correct. Be sure to use correct spelling, capitalization, and punctuation in your report. A report rid-dled with these types of errors gives a poor impression of its writer and the writer’s actions.
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Written in standard English. When you translate your ideas into words, follow the rules for correct writing. Use the past tense, complete sentences, and good grammar.
●
Legible. An illegible report gives a poor impression of the writer and a distorted explanation of who said what.
●
On time. A report that is submitted late reflects negatively on the report writer.
Make your reports, like all of your other communications, as clear and direct as possible. The following suggestions will help ensure that your reports can be easily understood (Hess and Wrobleski 1988):
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Use the first person. That is, write “I” instead of “the investigator” or “the interviewer.” First-person writing is recommended for law enforcement reports because it is direct.
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Write in the active voice. For example, say, “I asked Jane Smith . . .” rather than “Jane Smith was asked . . .” The active voice clearly indicates who performed the action.
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Correctly modify details to be included.
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When using pronouns, be sure it is clear to whom they refer.
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Use parallelism. That is, use the same type of structure for similar parts of a sentence.
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Choose your words carefully. Avoid legal, technical, unfa-miliar, and slang words.
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Include specific, concrete facts and details.
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Keep descriptive words and phrases as close as possible to the words they describe.
●
Use diagrams and sketches to clarify a complex description.
TESTIMONY IN A COURT OF LAW
Testimonial evidence is the foundation of both criminal and civil litigation and is often the subject of cross-examination.
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Evidence presented for consideration in court cannot intentionally be tainted. It cannot be tampered with and still be credi-ble and trustworthy.
True professionals maintain the integrity of the evidence and deserve society’s honor and respect.
During a trial, attorneys often seek to impeach, or discredit, witnesses for the opposing side. Most states allow the credibility of a witness to be attacked during a trial. This is usually done by challenging the truthfulness and consistency of the witness’s statements. Investigators are obligated to tell the truth whether in court or when giving a legal deposition. “From the opposing attorney’s point of view, the purpose of the deposition is to create a record for future impeachment. The deposition process can be a lengthy one. Be patient. . . . Hide your desire to get it over with.
Show toughness and resolve and a willingness to stay as long as necessary” (Matson, Jack V., pp. 41–42).
REVIEW QUESTIONS
1. Identify the three types of evidence, and give two examples of each.
2. What is the difference between interviewing and interrogating?
3. Why must a confession be voluntary, and what might happen if a confession is not obtained voluntarily?
4. What are the four Miranda warnings?
5. When are you legally required to give the Miranda warnings?
Discuss specific situations.
6. How has the U.S. Supreme Court defined interrogation?
7. Is a confession legal if a private security person compels someone to confess?
<
br /> 8. Identify at least three legal interrogation tactics.
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9. Is it permissible to use trickery when trying to obtain a confession?
10. Why is it important for the court to consider “the totality of the circumstances” under which evidence is located, collected, and preserved?
11. List the five basic steps in writing a report.
12. What are the ten characteristics of a well-written report?
13. What is a fact?
14. How can you ensure objectivity in your reports?
15. What can you do to make your reports clear?
5
Public and Private
Interviewing
Whether from the public or private sector, first-class investigators resemble each other more than they differ. They are successful because they share well-practiced skills, a high degree of perception, and a positive attitude. For the purposes of this chapter, we will define public investigators as official law enforcement agents, such as state or local police officers. We will define private investigators as licensed private detectives and the security or loss prevention personnel of a company. While the number of investigators in the public sector generally remains steady, the number of investigators in the private sector is growing. This chapter reviews some distinctions between the kinds of crimes public and private detectives investigate (with particular attention to white-collar crime) and the procedures they use.
Before we continue, let’s take a brief look at how crime is reported and classified in the United States. City, county, and state law enforcement agencies keep track of the yearly incidence of dif-61
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The Art of Investigative Interviewing
ferent crimes in their jurisdictions. Compiled by volume and frequency, these statistics are sent to the Federal Bureau of Investigation (FBI), which issues the annual Uniform Crime Report.
The FBI classifies the most serious crimes, such as murder, rape, and robbery, as “Part I offenses.” These crimes, which are the most likely to be reported to the police, serve as the major index of crime in the United States. The crimes listed as “Part II offenses” are considered less serious—that is, less harmful to individuals and less damaging to society. The Part I and Part II offenses are listed in the following box. As you can see, the FBI considers fraud and embezzlement to be Part II offenses. The federal guidelines define fraud as “fraudulent conversion and obtaining money or property by false pretenses (confidence games and bad checks, except forger-ies and counterfeiting, are included)” and embezzlement as “the misappropriation or misapplication of money or property entrusted to one’s care, custody, or control” (FBI 2001, p. 407).