Another interesting application of forensics is in the field of psychology. Many consider forensic psychology the intersection where psychology and criminal investigation meet. Forensic psychology for our purposes involves the application of
The Process of Investigation ◾ 23
35%
30%
Appearance of any
25%
first digit expressed
as a percentage
20%
15%
10%
5%
0%
1
2
3
4
5
6
7
8
9
First digit
Figure 1.2 Benford’s probability distribution of the first digit in nonnormally distributed data sets.
psychological theory, knowledge, skills, and competencies to the pursuit of civil and criminal justice. Similar to the other forensic methods mentioned above, it, too, is a tool. When properly used, it allows a peek into the mind of the subject and permits the fact finder a fundamental understanding of why the subject of his investigation behaved in the manner he did—or may behave in the future. It has applications in a wide array of environments both clinical and corporate. Within the corporate environment, a working knowledge of the subject’s mindset is sometimes essential in order to manage and predict the future behaviors of those under investigation. In matters involving threats of violence in the workplace, it is frequently imperative to understand the motivation of the aggressor and their capacity to do harm. Armed with a psychological appreciation for the way environmental stressors and other emotional influences impact behavior, the fact finder and his team can better engineer an intervention strategy. The professionals that provide this type of assistance are specialists. It is a mistake to presume that any attending physician, family psychologist, or EAP (employee assistance program) counselor can provide the forensic assistance necessary for most workplace investigations.
The clinician qualified to provide assistance must be properly trained and have the requisite experience to conduct psychological forensic assessments. The fact finder has a duty to ensure the resources brought to bear are qualified to perform the task assigned. These qualifications might include: credentials in the field of forensic psychology, formal education, and practical experience. Of these, practical experience may be the most important. The clinician without experience in complex
workplace investigations will have difficulty balancing the opposing interests of the parties and rendering legally defensible advice. My organization, for example, has employed as many as seven forensic psychologists. As members of our behavioral
sciences team, they have the forensic qualifications stated above and specific training
24 ◾ Investigative Interviewing
and experience regarding the process of investigation. Thus, together we are able to engineer investigative solutions that meld their capabilities with a sound investigative strategy.
Tip: While forensic psychology does not play a role in every workplace investigation, the fact finder ought to be familiar with this tool and be able to properly use it when appropriate.
In my firm, our clinicians are most often used to assist our fact finders with violence risk assessments. In matters involving threats of violence, these professionals assess the potential dangerousness of the subject. Even when the act of aggression is nonphysical and only psychological, it can be painful and costly. Employers are expected to have strong policies, effective security protocols, and a well-conceived strategy to confront the potentially violent employee and prevent workplace violence. Our clinicians help make expectations a reality. To see an example of the practical application of this tool, go to Appendix 9.
1.5.5 Undercover
Corporate undercover investigation is one of the most powerful methods of
investigation. By definition, it is nothing more than the surreptitious placement of a properly trained and skilled investigator, posing as an employee, into an
unsuspecting workforce for the purpose of gathering information.12 Undercover
is one of only two forms of investigations that are interactive. That is, it permits the investigator to interact and communicate with those he is investigat-
ing. However, undercover is immensely complex and is fraught with challenges.
When conducted improperly, it can create unfathomable liabilities for both the
employer client and the fact finder.
Undercover investigations are also time consuming and expensive. The typical
investigation might take three to six months and cost as much as $100,000. Because of the cost and liability associated with undercover, I tell my clients it should only be used as the option of last resort. After all other alternatives and solutions have been thoroughly contemplated, only then should undercover be considered. That
said, I have personally supervised or managed over 1,000 undercover investigations in my career. I have successfully placed undercover investigators in nearly every working environment imaginable. Over the years, my undercover investigators
have harvested trees, planted lettuce, built airplanes, sorted recyclables, emptied bedpans, refined oil, directed traffic, made bath tissue, tended bar, drove trucks, sorted mail, and slaughtered livestock. The only environment where undercover
usually is not possible is one in which the employer is not hiring. Even then, undercover is sometimes possible.
The Process of Investigation ◾ 25
However, undercover is not for the fainthearted. It requires a motivated and
disciplined investigator and close supervision. It generally cannot be done in-house.
Those who wish to use this method of investigation should always use a vendor—
and good vendors are hard to find. If you are eager to learn more about undercover and how this fantastic investigative tool can and should be used, obtain a copy of my book, Undercover Investigations in the Workplace (Butterworth-Heinemann, 1999). Though out of print, the information it contains is invaluable. Used copies are readily available from book sellers with offering on Amazon.com. For the rest of you, let’s move on to interviews and interrogation, indisputably the most powerful tools in the workplace investigator’s tool chest.
1.5.6 Interviews
The sixth and final method of investigation is the systematic collection of information via interviews and interrogation. As discussed earlier in this chapter, these terms mean different things to different people. The term interview seems less harsh than interrogation to most people. It describes a process that is less formal, less structured. But Merriam-Webster® defines these terms similarly, distinguishing interrogation as a process in which one “questions formally and systematically.”
However, in actuality, the word interrogation is rarely used to describe a formal and systematic interview. Instead, when one uses the word interrogation, it seems to mean so much more. The thought of interrogation conjures up images of an
offensive and coercive interview during which the subject is harshly questioned in a windowless room with hands and feet bound while seated under a bright light. It’s stigmatized, carrying with it the inference or suggestion of coercion, intimidation, and thuggery. Some even consider an interrogation to be unlawful. As such, I use the word very cautiously. I don’t like the inferences that are associated with it and don’t care to offer qualifiers or explain myself every time I use the word. Hence, for the purposes of our study of the subject I will restrict my use of the word.
Interviews conducted during workplace investigations fall into two categories.
The less formal of the two is called administrative interviews. These include interviews of witnesses, bystanders, process owners, stakeholders, and others not culpable or likely culpable of the offense or matter under investigation. Investigative interviews on the other hand, are reserved for those who we have
very convincing reason to believe committed the offense or had direct involvement in it. Both forms of interviews are highly structured, but neither is confrontational or accusatory.
Largely what distinguishes the two is the intended outcome. During administrative interviews, we are simply looking for information. We are attempting to learn, gain insight, and collect information. During investigative interviews, first and foremost we are seeking an admission.
Another pair of words creating confusion are admission and confession. They are not the same. A confession is a statement that includes an admission satisfy-ing all of the elements of the crime. In workplace investigations, confessions are
26 ◾ Investigative Interviewing
not necessary. In order to discipline an offending employee, in most instances the employer needs only to prove the employee in question committed the offense.
The employer does not need to prove or demonstrate things like means, motive,
and state of mind or intent. Those elements of the offense are inconsequential
and have no bearing on the employer’s decision to impose discipline. Armed
with a properly obtained admission, an employer needs nothing more to take
disciplinary or corrective action against the offender. The same is not the case for criminal prosecution.
Trap: Employers tend to over-investigate. Many of them believe they must prove their case beyond a reasonable doubt. This extraordinarily high standard (or sometimes referred to as burden) of proof is reserved only for criminal prosecution.
In pursuing it, the employer expends more time and resources than necessary.
Like undercover, interviews are also interactive. They afford the investigator
the opportunity to exchange information with the subject. Specifically, interviews afford the investigator the opportunity to determine the who, what, where, when, how, and why from the very person who was there. It also provides the investigator the unique opportunity to peek into the mind of the offender. This benefit, combined with the opportunity to obtain an admission, makes the investigative interview the most powerful form of investigation for those conducting workplace
investigations—and the title of this book.
1.6 The Seven Phases of Investigation
Most workplace investigations unfold incrementally. That incremental, yet
dynamic, process is called The Process of Investigation. The process includes seven distinct phases. They include:
1. Assessment
2. Planning and preparation
3. Information gathering and fact finding
4. Verification and analysis
5. Decision making
6. Disbursement of disciplinary and/or corrective action
7. Prevention and education
Every proper workplace investigation requires the fact finder to structure
his or her investigation such that it systematically contemplates each phase. To do otherwise is insufficient, unprofessional, and, possibly, even negligent. The
The Process of Investigation ◾ 27
investigator who imposes process and structure on his investigation obtains better results and does so with more efficiency. What’s more, it differentiates him as a professional. It affords him and his employer or client the benefit of ease in assessing and analyzing the result. As in the scientific community, process also permits peer review. In the community of employer–employee relations, others
may review the fact finder’s efforts and are able to easily and accurately reconstruct that which the fact finder found and how he found it. The ability to reconstruct the process and demonstrate its integrity and propriety lends it credibility.
That credibility is the foundation on which all facts rest. An investigative process without credibility is fatally defective. That defect potentially imposes a bar to the admission and ultimate use of otherwise admissible and actionable evidence. It is the implementation and ultimate integrity of this process that is the hallmark of the professional investigator.
1.6.1 Assessment
The Assessment phase of the investigation involves examination and evaluation of the fundamental facts regarding the allegation and some “preinvestigation investigation.” Things generally accomplished in this phase include:
◾ Determining if the parties suspected are, in fact, employees and were work-
ing on the date and time in question.
◾ Determining what policies, practices, and precedents exist that may impact
the intended investigation and the manner in which it is to be conducted.
◾ Who else in the organization should be notified prior to the initiation of the fact finding or before investigative interviews take place?
◾ Are there any parties external to the organization that should be notified and, if so, who?
Equally useful is the simple mental exercise of determining if the matter is
even worthy of an investigation, are the allegations (or suspicions) credible, and what might happen if the matter is simply ignored? Additionally, one also might consider the endgame. For example, what does a successful investigation look like and how might the results be used? Does the result include prosecution, restitution, or discipline? These and other factors will drive one’s process and the level of effort he will invest. In order to facilitate this phase of the investigation, see Appendix 2. This easy-to-use tool (called the Investigation Checklist) can be modified to suit your individual needs. In its current form, it covers all of the up-front considerations and actions discussed thus far and can be used to ensure nothing has been overlooked.
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Tip: Fact finders are well served by properly assessing an allegation and fact pattern before committing themselves and their organization to an investigation.
Failing to undertake some simple preinvestigation steps often results in wasted time and resources.
1.6.2 Preparation and Planning
The next phase of the process has been discussed already in some detail. It involves all of the front-end activities and preparations that normally take place before fact finding begins. It includes such activities as obtaining management’s commitment, negotiating objectives, establishing a timeline for the project, deciding a standard of proof, and pooling the necessary resources and expertise to do the job properly.
I take the preparation and planning of my investigations very seriously. I
have learned from experience that the time and energy invested up front pays big dividends later. For example, by negotiating and detailing objectives early, I am more easily able to lobby for the resources I need to do the job. By establishing a timeline and communicating it with the client before the project begins, allows both the client and me to better plan and budget our time. It also provides a
clearer way to communicate expectations and often reduces confusion later. The
old adage, “plan your work, then work your plan,” works perfectly here. Without proper preparation and planning, successful workplace investigations are more
difficult and less efficient. And sadly, even seasoned investigators overlook this important step. Have you ever intentionally traveled a great distance to a far-off destination without a strategy, itinerary, or map? It’s not possible. You would never reach your destination. Why then would you undertake something as complex as an investigation without doing the same preparation and planning? Only
a novice would gloss over this important step. Don’t be foolish: plan your work, and then work your plan.
1.6.3 Information Gathering and Fact Finding
I have already described in considerable detail the six methods of investigation. This phase of the investigation necessitates the investigator to combine these methods and deploy them in a precise sequence and measure. Tactically, the investigator mixes and matches the methods she determines appropriate at the appropriate time. This mix is largely predetermined during the planning phase. Th
e investigative team, project manager, and client should together determine the investigative tools to be used and when. If you have ever conducted a workplace investigation, you probably did this and gave it very little thought. By front ending the process with sufficient planning and sequencing the investigative tools to be used, the objectives are usually easier to achieve and the investment necessary to achieve them is diminished.
The Process of Investigation ◾ 29
The information-gathering phase of the process, however, is not an end, but a
means. The purpose of this important phase is to gather the information necessary to move to the next phase: verification and analysis. This point is missed all too often by many in the industry. Many of my colleagues fail to appreciate that the successful gathering of information does not mark the end of the investigation. The successful gathering of information provides the foundation from which to move
forward. Here’s a good example:
Hypothetically, suppose our client (external or internal to our organization)
suspected an employee was violating his organization’s policy regarding the use of the Internet during working hours. Specifically, the organization had credible evidence that the employee in question frequently viewed pornography at his workstation during his scheduled work hours. Suppose also that during the preparation and planning phase, it was decided that, should the suspicions be true, the employee would be terminated. You are asked to conduct the investigation and obtain the
proof, should it exist.
Given the objective to obtain the proof, the fact finder also must know the
standard of proof. The sophisticated fact finder knows the standard of proof will drive his process and significantly determine the resources necessary to obtain the stated objective. Because only an employment action is sought, the standard of
proof should be that of good faith investigation/reasonable conclusion.13
After some quick preinvestigation investigation and an assessment relative to
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