The Differences between the Public and Private Sector ◾ 43
Public Sector
Private Sector
Lying
Generally acceptable to
Unacceptable and widely
the extent the falsehood
considered unethical.
merely embellishes the
quantity or quality of
evidence.
Making promises
Generally acceptable if
Unacceptable and widely
relied upon by a
considered unethical.
defendant in making a
confession. Some
promises, however, are
acceptable (see Dempsey,
page 191 for several
examples).
Threatening
The use of threats is
Unacceptable and widely
considered inherently
considered unethical—may
coercive and their use may even be unlawful if threat
render a confession as
is used for the purpose of
involuntary.
extortion.
Figure 2.1 Contrasting the lengths to which those in the public and private sector can go to obtain the cooperation of an interviewee.
However, there are limitations to the length an employer can go to get the
cooperation of an interviewee. In the private sector, it is universally accepted that employers may not lie, make undeliverable promises, or threaten an employee to
obtain her cooperation. Figure 2.1 illustrates those limitations.
These private sector limitations are construed not from law, but policy and ethical restraints imposed on the employer. Some of these restraints are self-imposed, others are industrially or socially imposed. Regardless, their driver is the commitment to fairness, integrity, and social responsibility. Interestingly, we do not impose these same values on those who conduct custodial interviews (ahem, interrogations) in the public sector.
2.3.4 Prosecution and Punishment
Employers believe they can prosecute lawbreaking employees, but they cannot.
Unfortunately, it’s a widely held notion even in the private security industry. Only the government can prosecute someone. Even more interesting is the fact that employers cannot even ask the government to prosecute someone. In every jurisdiction of which I am aware, the improper influence of the prosecution is in and of itself a crime.
44 ◾ Investigative Interviewing
Furthermore, an employer’s threat of prosecution may constitute criminal extortion.2
Again, contrary to popular belief, the employer can only file a complaint. It is the duty of the government to determine if a law might have been broken and, if so, what charges should be brought based on the evidence available. In property crimes, such as theft, if the employer was the victim, its agent (an owner or manager) could swear out a complaint and ask that the matter be investigated. The authorities would then work the case and hopefully find the suspect and charge him. On the other hand, in matters involving workplace substance abuse, even selling illegal drugs at work, the employer is not the victim. The government is technically the victim and no complaint is necessary. It is the sole discretion of the government to pursue the matter or not. The employer cannot decide who or what offenses shall be prosecuted.
Successful prosecutions also result in punishment. The punishment is designed to fit the crime and ranges from something as passive as a suspended sentence up to and including execution. The private workplace has nothing equivalent. And, employees are not punished, they are disciplined. The notion of workplace punishment does not exist in a free society. However, many liberal-minded triers-of-fact consider employee termination the civil equivalent of capital punishment. As such, termination is frequently considered extreme discipline and only used in extreme circumstances.
Workplace discipline also does not produce a public record. Criminal prosecu-
tion, except that of minors, produces a criminal record capable of following the offender his entire life. Not so in the workplace. Employee discipline is a private matter and rarely should co-workers even be told what discipline was dispensed
against a co-worker. In the interest of employee privacy and confidentiality, workplace discipline stays in the workplace and any record of it remains under strict employer control. Even prospective employers find it difficult to learn the terms and conditions of an applicant’s separation from a prior employer.
The public sector is not bound by such construct. In addition to some of the most powerful investigative tools available only to it, the public sector is largely unconcerned about individual privacy and confidentiality. Of course, its investigations are draped in confidentiality, but the process and results are ultimately disclosed and made available to public scrutiny. In fact, it is this public disclosure that keeps the system sound and its participants honest. The public aspect of a criminal trial is so critical to the fair and proper workings of the process that it is constitutionally protected. The private sector is not bound by such rules and procedures. Only if challenged must the employer make limited disclosures. Even then, special privileges abound ensuring certain communications and evidence remains confidential.
2.3.5 Resources
The question of whether it is the public sector or private sector that has greater resources is debatable. Both sectors have operational and fiscal limitations. Both have manpower and technological limitations. But even today, Microsoft® with a
reported $80 billion cash reserve and the U.S. federal government with an annual
The Differences between the Public and Private Sector ◾ 45
deficit of something near $1 trillion Microsoft could not outspend the government.
Nor could Microsoft® field more people than the government. The total combined
capability of all federal, state, and local law enforcement authorities in the United States is unmatched in the world.
On the micro level, I also would argue that the government, at the federal, state, or local level, can probably throw more resources at any particular case than almost any defendant. These same government resources probably can outgun most corporations as well. There are examples, of course, to the contrary. The federal government has waged battle against the likes of Microsoft and IBM® (IBM Corporation, White Plains, New York) in federal court and substantially lost in several cases. In several of these instances, the defendant threw more resources at the case than the federal government and effectively overwhelmed the system. One case in point was the IBM antitrust case that finally ended in the 1970s. During discovery, IBM provided over 100,000,000 documents. Analysts at the time speculated that it would take the presiding authority 3,000 years just to read all of the evidence.
2.4 Advantages of the Private Sector
In spite of the awesome powers of the government and systems that support it, the private sector has some of its own unique privileges and advantages. I have touched upon a few already, but there are more of them and some are remarkably powerful.
2.4.1 Due Process
The Constitution of the United States and its amendments ensure and protect a
host of important personal rights. By design, the Constitution protects the citizenry against government oppressions and intrusions. Contrary to the assertions of many advocates and commentators, it does not substantially protect us from each other. More precisely, it restricts the behavior and actions of government, not its citizens. One of the Constitution’s more progressive protections is that of due process. Among other things, due process includes the right of the accused to know the offense(s) and crime(s) of which one is suspected, the right to view and examine the government’s evidence, the right to face one’s accusers and examine them as well as any and all witnesses, the right to competent representation, and protection against self-incrimination. These rights are bolstered by volumes of criminal procedures
and case law. Amongst that body of law is Miranda.3
The Miranda decision, decided in 1966 by the U.S. Supreme Court, requires
those taken into criminal custody and where probable cause exists, which sug-
gests the suspect committed a crime, the suspect be informed of his due pro-
cess rights before questioned.4 Remarkably, employees when questioned by their
employer or the employer’s agent (a hired consultant or private investigator)
with regard to possible misconduct have no such rights, even if the suspected
46 ◾ Investigative Interviewing
Figure 2.2 The Miranda warnings apply only to “investigative custodial questioning aimed at eliciting evidence of a crime.” Miranda has no applicability in the private sector unless the investigative interview is conducted under the color of the law.
misconduct is criminal in nature. Allow me to say it again. Regardless of the
nature of the suspected offense, in the private sector employees under investigation by their employer, have no due process rights. The employer has no duty to even tell the employee under suspicion the offense of which he is suspected or
what evidence the employer might have against him. Furthermore, the suspected
employee does not even have the right to representation or even a witness when
questioned by his employer. The right to a lawyer or other representative from
outside the organization does not exist.5 The theory goes that such encumbrances would impinge on the employer’s prerogative to run its business as it sees fit and impede the necessary collection of information required to solve internal problems (Figure 2.2).
Employers must be careful, however. Although they have no legal duty to pro-
vide the subjects of internal investigations any due process, some triers-of-fact and those who make up juries sometimes think otherwise. The appearance of treating
the subject unfairly and the failure to comply with the reasonable requests by the subject may expose the employer to considerable liability. Even absent the rights of due process, it is expected that all people be treated fairly and provided all reasonable accommodations while under suspicion or when accused of misconduct.
Furthermore, the more the employer involves the government in its investi-
gation, the greater these expectations. It is for these reasons that, as a matter of practice, I avoid attaching agent status to my investigators whenever possible. The
The Differences between the Public and Private Sector ◾ 47
more control and influence law enforcement has over a workplace investigation
and its fact finders, the more agent-like the fact finders become. Subsequent to the discipline, should an employee successfully argue the fact finders were agents of law enforcement or that the use of them by law enforcement subjugated rights they might otherwise have enjoyed, portions, if not all of the evidence gathered by the fact finders, could come under attack. A plaintiff (or in the case of criminal trial, defendant) might attempt a motion to exclude the “improperly obtained evidence.”
If the motion was successful, the entire investigation could be in jeopardy. More easily in an arbitration, where the rules of evidence are more lax, an arbitrator could exclude the grievant’s admission or that of others simply on the belief that ample due process was not provided.
Tip: Avoid the appearance of being an extension of law enforcement and keep your portion of the investigation separate from that of the government. If prosecution is likely, remand your evidence only after you have received a court order to do so.
2.4.2 Entrapment
There are employers who are leery of investigative interviews. Among them the
most common and unnecessary fear is that of entrapment. Employers and even the
lawyers who represent them principally fear entrapment because they don’t understand it. Contrary to popular belief, entrapment is not a crime. It is not an offense or something bad employers do to innocent employees. It is not something for
which one might be punished or even admonished. Entrapment is nothing more
than a criminal defense. The theory behind the defense suggests that an otherwise law-abiding citizen would not have committed the crime in question had not the
government or its agent improperly induced him. In order to prevail, the defendant must show the inducement was sufficiently improper and, absent the government’s influence, he possessed no predisposition to commit the crime.
Because entrapment is a criminal defense, only the government can entrap
someone. An employer cannot entrap an employee and an investigative interviewer cannot entrap an interviewee because a citizen cannot entrap another citizen. Only the government can use entrapment. What’s more, the defense of entrapment can
only be used after a defendant admits to the commission of the crime. That’s right; one cannot claim entrapment and also claim innocence. A defendant cannot have
it both ways. Let’s look at an example of entrapment:
Suppose an undercover police officer posing as a life insurance agent suggests to an otherwise law-abiding prospect that he or she purchase unnecessary life insurance on a spouse and then kill their partner and redeem the policy. To cinch the deal, the undercover agent offers a policy priced well below market and offers to help plan
48 ◾ Investigative Interviewing
the murder. Acting upon the opportunity, the would-be policyholder is immedi-
ately arrested and charged with conspiracy to commit murder or its equivalent. Our hypothetical defendant could easily raise the defense of entrapment and would likely prevail. Unfortunately, his or her marriage would be another matter altogether.
Interestingly, a law enforcement agent’s offer to sell an illegal drug to a citizen under most circumstances does not constitute entrapment and the defense is often unavailable to the defendant. Courts will usually insist that the prosecution show some predisposition to the crime, but the offer to sell an illegal substance alone generally does not constitute entrapment. Reverse stings, as these operations are typically called, have increasingly become the weapon of choice in the war against drugs. Simultaneously, civil liberty advocates have increased their opposition to them. Please note, however, that reverse stings are not appropriate in most workplace settings and typically should not be used by the private sector.
Because entrapment is so misunderstood and stigmatized, workplace fact find-
ers should contemplate counters to the claim during the planning phase of their investigations. Of all of the types of investigation subject to this claim, undercover is the most likely. Because undercover is so interactive and the subjects of the investigation are in direct contact with the investigator, claims of entrapment following an undercover investigation are common. Countering the claim is easy, but any
counters used must be deployed during the investigation, not after. There are two counters that are particularly effective.
2.4.2.1 Establish That the Misconduct Was Preexistent
The undercover investigator can establish the misconduct was preexistent in numerous ways. The easiest way to accomplish this is for the undercover investigator to simply ask the subject for how long he or she had engaged in the misconduct in
question. Here’s a simple example:
Suppose our investigator is investigating allegations of employee substance
abuse. During a casual conversation during break, the investigator openly expresses interest in purchasing marijuana for the weekend. During the conversation, one of the employee participants off-handedly offers to sell some to the investigator. The employee tells the investigator that she has several bags of marijuana in her possession and wishes to sell one or all for $25 each. To counter the potential claim of entrapment, the investigator should simply ask the seller if she had ever before sold marijuana at work. An affirmative response would demonstrate that the activity had taken place before th
e investigator had come on the scene. As such, the seller could not later claim she had been induced by the investigator to do something she had already done.
2.4.2.2 Establish the Motive of the Offender
You may recall I mentioned in Chapter 1 that motive is an irrelevant element for an employer who is deciding discipline. Despite its usefulness for other purposes, an
The Differences between the Public and Private Sector ◾ 49
employer needs neither to know motive nor consider it when deciding discipline.
However, the disciplined employee may attempt to introduce motive when using
the defense of entrapment. Because the defense necessitates the offender to show his behavior was adversely influenced by someone else, the argument is bolstered if motive is shown to have been influenced as well. For example, suppose the offender who claims entrapment argues as part of his defense that he was both broke and
lonely, and the offer by the investigator included the reward of money and friendship. These claims tend to support the defense and give it the credibility it needs—
that is, were it not for the need of money and friendship, and the influence of the investigator, the offender would have never committed the crime. Defeating this argument is easy.
The solution is to deploy the second counter with the first during the fact-
finding portion of the investigation. All the investigator needs to do is establish the motive of the potential offender before the offense is committed. For example, in the hypothetical above, had the investigator established that (1) the offender had committed the offense several times prior to the investigator entering the case, and (2) the motive was profit as evidenced by a new vehicle the offender bragged he had just purchased with proceeds, the defense would handily be defeated. What’s more, introducing this sort of evidence further incriminates the accused. Our hypothetical offender has not only had to admit he had committed the offense in order to use the defense of entrapment, but now he’s stuck with the burden of explaining the purchase of his new pickup truck he had bragged to so many about. He also has the additional burden of recovering his credibility. Remember, he claimed he was broke and needed a friend. The $35,000 red pickup he purchased before he had met the
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