fewer resources for research and development, fewer process and technology
improvements, less profit, fewer investments, and ultimately the creation of fewer jobs. It’s a sad and pathetic cycle. Even the government loses. With less money in cir-culation and fewer people working, fewer taxes are collected. The net effect is a less competitive and weaker economy. No one wins when businesses are over-regulated.
2.6 Summary
From the standpoint of the fact finder and the investigative interviewer, there are significant differences between the public and private sector. Those differences include not only the mission of the respective sectors, but the tools available to them. Each of the tools offer their users advantages and disadvantages. What differentiates the public sector from the private sector most significantly is that the public sector is bound by Constitutional restrictions, whereas the private sector largely is not. This seemingly significant advantage is often offset by the rights of workers and the accompanying risk of litigation. To know and respect these differences
separates exceptional investigative interviewers from those who are merely useful.
2.7 Frequently Asked Questions
1. Shouldn’t an employer want to know the motive before deciding to disci-
pline an employee?
In the strict sense, no; from a practical perspective, yes. In the first instance, excluding any extenuating or mitigating circumstances, an employer does not need to know or consider motive in order to impose discipline. However from a practical perspective, an employer might want to know motive in order to devise safeguards to prevent the problem from reoccurring.
2. My organization has a practice of providing interviewees a written disclosure that they can either have a union representative or lawyer advise them before
they have to agree to participate. Is this a good practice?
No, nor is it lawfully required. Unless contractually required, such notifications are not necessary. Moreover, did the employee who committed the offense in
question tell the organization it should seek the advice of counsel and review its options before he committed the offense? Experience also shows that employees use such offers to delay and obfuscate their employer’s investigative process and provide little benefit against frivolous claims by those whose discipline arises from that process.
The Differences between the Public and Private Sector ◾ 57
3. If the word interrogation carries such a negative connotation, why do so many fact finders and employers still us it?
Good question. I suppose lack of experience and carelessness are the primary reasons the word remains in the lexicon of many fact finders. To the uninitiated, it sounds professional, even a little important. However, in reality, it only invites trouble. In litigation against my firm many years ago, one of the “ facts” offered by the plaintiff was that she was “mercilessly interrogated in a frigid windowless room for more than hour without food, water, or the advice of counsel.” If you like that sort of allegation on your résumé, continue to use the term interrogation—in time, someone will add it for you.
Endnotes
1. The statutes and rules that regulate the conduct of grand juries (or their equivalent) vary from state to state. My purpose here is only to demonstrate the power this tool affords the government and the lack of anything equivalent in the private sector.
2. For example, California Penal Code §§153 and 519 make it a crime to threaten criminal action to bargain or obtain the settlement of a civil matter.
3.
Miranda v. Arizona, 384 U.S. 436 (1966).
4. The author acknowledges the current state of law with regard to when and precisely under what circumstances Miranda is required is in flux. As such, this brief treatment is offered for illustrative purposes only and should not be construed as a strict interpretation of the law.
5. There are some exceptions and among them are circumstances involving an employee who is a member of a collective bargaining agreement. See NLRB v. J. Weingarten, Inc. , 420 U.S. 251 (1975).
6. In Cotran v. Rollins Hudig Hall International, Inc., 1998 Cal. LEXIS 1 (January 5, 1998), the California Supreme Court joined the majority of other jurisdictions in holding that good cause existed for terminating an employee for misconduct if an employer had a reasonable and good faith belief that the employee engaged in misconduct. It was ruled that the employer does not have to convince the court or jury that the employee in fact committed the misconduct, only that the employer honestly believed that the employee engaged in misconduct based upon substantial evidence obtained through an adequate investigation that included a fair opportunity for the employee to respond to the charges. The Court further defined the term good cause as a “reasoned conclusion … supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed
misconduct and a chance for the employee to respond.” So, while the employees of employers in the private sector do not enjoy constitutionally protected due process rights, the California Supreme Court holds that an accused employee indeed has
the right to respond.
7. James C. Collins, Built to Last (New York: Harper Business, 2002).
8. Mahan Khalsa, Let’s Get Real (Salt Lake City, UT: Franklin Quest Co., 1999).
9. Michael Lewis, The New New Thing (New York: Penguin USA, 2001).
10. Thomas J. Stanley, The Millionaire Next Door (New York: Simon & Schuster, 1999).
58 ◾ Investigative Interviewing
11. M. Scott Peck, The Road Less Traveled (Carmichael, CA: Touchstone Books, 1998).
12. U.S. House of Representatives Committee on Economic and Educational Opportunities, Hearing: Conflicts and Inconsistencies in Workplace Regulations, Washington, D.C., 1995.
13. Scott Thurm, The Wall Street Journal, June 11, 2013.
14. Philip K. Howard, The Death of Common Sense (New York: Random House, 1994), 12.
Chapter 3
The Fundamentals
of Interviewing
Key learning points:
1.
Investigative interviewing is a method of investigation. It is typically the cornerstone of the fourth phase of investigation: verification and analysis.
2.
The skill of the interviewer should be matched to the type and nature of the
project to be undertaken.
3.
The fact finder must be impartial and not allow his or her loyalty and self-interests to interfere with the fact finding process or the interviews he conducts.
4.
Treat all of your subjects with respect and dignity.
5.
Structure your document management process such that it allows your work
product to be easily filed and retrieved. Exercising discipline during the early phases of the project can save time and frustration later.
6.
Evidence is any type of proof that, when presented, is materially capable of
proving or disproving a contention or fact.
7.
Spoliation is the intentional or negligent destruction of evidence and constitutes an obstruction of justice. Those who are found guilty of it may be sanctioned.
8.
Under the doctrine of the work product privilege, all that the fact finder does and produces can be deemed privileged and withheld during discovery. It is a
tool that every investigative interviewer should be aware of and use.
“The temptation to lie when questioned is inversely proportional to the professionalism of the one asking the questions.”
E. F. Ferraro
59
60 ◾ Investigative Interviewing
3.1 The Role of the Investigative Interviewer
It would not be surprising if the casual reader was slightly confused thus far. Such a reader might wonder if investigative interviewing is a method of investigation or the culmination of an investigation? Succinctly, investi
gative interviewing is a method of investigation. It is typically the cornerstone of the fourth phase of investigation: verification and analysis. Its outcome and success depend on the third phase: information gathering. However, it too is an information-gathering tool. It enables the fact finder to verify the findings of the information-gathering effort, which preceded it and assists in the analysis of it. As an investigative method, it is distinctly:
◾ logistically simple
◾ interactive
◾ produces results that are of high evidentiary and corroborative value
◾ offers some element of due process
Properly conducted investigative interviews also allow the fact finder to obtain the subject’s explanation of what took place and why. It also offers him the opportunity to provide any extenuating or mitigating circumstances that may be rel-
evant. If others were involved, the investigative interview also might yield their identity and shed light on motive and intent. Most importantly, the investigative interviews that follow the fact finding should yield admissions of guilt. Singularly, it is the responsibility of the fact finder to identify who should be interviewed and why.1 He should also decide when and where those interviews take place as well as contemplate all reasonable contingencies. It is not uncommon that the fact finder finds himself investing as much effort into the planning of his interviews as he does his fact finding. However, before we go there, let’s first examine the qualities of a professional investigative interviewer.
3.2 Qualities of a Professional Investigative Interviewer
No discussion regarding the qualities of the professional investigative interviewer would be complete without first defining him. The investigative interviewer is a central and critical figure in the fact finding process. Of the assorted members of the investigative team, the investigative interviewer in many regards defines the outcome of the investigation. In less complex investigations, the investigative interviewer may single-handedly fulfill the role of fact finder, counselor, and even decision maker. In small organizations, it is not uncommon for a member of the
Human Resources Department to make the decision to undertake an investigation,
perform the investigation (including conducting the investigative interviews), and ultimately decide disciplinary and corrective action when appropriate. Although, this is not advised even in the simplest investigations, circumstances sometimes
The Fundamentals of Interviewing ◾ 61
dictate that the investigative team be comprised of a single individual. Optimally, the investigative interviewer is one of many individuals who, working together
toward common objectives, comprise the team that ultimately drives the investigation from start to successful conclusion.
3.2.1 Skill
The first characteristic the investigative interviewer should have is skill. The skill of the interviewer should be matched to the type and nature of the project to be undertaken. This individual should have the requisite skill necessary to achieve the desired objectives. For example, an interviewer possessing only the training and skills associated with the investigation of sexual harassment would likely be unsuited to undertake the interview of those involved in a complex fraud. Conversely, someone with the training and skills associated with only complex frauds or financial crimes would be equally unsuited to interview those involved in workplace substance
abuse. There is, of course, a crossover of skills, and many qualified interviewers may have the skills necessary to conduct all sorts of investigative interviews. Regardless, the outcome of the project will be largely driven by the skill of those involved and their ability to bring to bear that skill and all prior training in an orderly and effective fashion. Just as one would not ask an ophthalmologist to perform heart surgery, one should not expect any particular interviewer to perform every type of interview skillfully. Instead when possible (practicable, if you may), it is best that the skill of the interviewer be matched to the type of investigation to be undertaken.
Tip: For best results, whenever possible match the skill of the interviewer to the type of matter in question.
However, the old maxim, nothing is as it first appears, reminds us that even with the best planning there are always surprises. Because few interviewers are skilled in all types of matters, they must be sufficiently flexible in order to deal with those surprises. For those situations, process and experience are one’s best allies.
3.2.2 Experience
Some argue that experience trumps skill. However, I believe experience is an integral component of skill. It is experience that allows the properly trained and skilled interviewer to overcome unusual and oftentimes unexpected circumstances that
invariably arise during an interview. Here is a good example. As a project lead, I often pinch hit as one of my team’s investigative interviewers. In that role, I act as a backup to the core interviewers selected for the project. In one particularly memorable case, I chose to interview the ring leader of a small but very destructive theft
62 ◾ Investigative Interviewing
ring that had burrowed deep into my client’s organization. He was a prominent
member of the East Los Angeles street gang White Fence. White Fence was one of
L.A.’s oldest and most notorious street gangs with a history that spanned nearly a century. After my introduction and having described to him our methods of investigation, he abruptly said, “I did it; I killed her.” Remorsefully, he dropped his head and added, “I am sorry.” Mind you, I was interviewing him because of another matter; he thought I was there to discuss something far more serious. I quickly gathered my thoughts and asked for a few details. He told he had stabbed his girlfriend to death in the presence of her father and that the crime had haunted him since. He said he knew the day would come when he would have to take responsibility for the awful things he had done and thought this day was it. I quickly excused myself and ran to my client’s office down the hall and shared what I had just learned. Together we called the Los Angeles Police Department (LAPD) and revealed what had happened. The police quickly arrived, questioned the man, and took him into custody.
I never saw him again. With his assistance, he was eventually connected to the
crime, tried, and found guilty of murder.
Tip: Expect the unexpected and plan for it.
I believe that good judgment comes from experience, and experience comes
from bad judgment. However, the experience must be of the proper type. Like skill, experience in sexual harassment investigations may not translate well in complex fraud investigations. Oftentimes, organizations hire individuals with law enforcement experience to run their security or loss prevention functions. Though on its face this seems to make perfect sense, confusing the experience of one responsible for the enforcement of public law with that of the needs in the private sector is a serious mistake. Contrary to popular belief, the sad fact of the matter is that there is very little experience crossover between public law enforcement and private sector asset protection and loss prevention. Yet, this mistake is made every day. A whole host of organizations, large and small, intentionally seek out and hire those with prior law enforcement experience for corporate security positions. It is my opinion that the skill and experience of most law enforcement professionals does not match that needed by the private sector. Similarly, human resource professionals are often asked to perform investigative tasks and interviews of which they have no experience, either.
Tip: Whenever possible, use experienced interviewers. Match both the skill and the experience of the individual selected to the specifics of the matter of which he or she will be asking questions. And, remember, having done something many times does not equate to the ability of doing it well.
The Fundamentals of Interviewing ◾ 63
3.2.3 Impartiality
Impartiality is the innate ability to separate one’s self and self-interests from the investigation and its outcome. It is not a
common trait, nor is it human nature.
Because the human spirit is possessive by nature, we tend to take ownership (and pride) in the things we do. The greater the investment of time and resources, the greater that sense of ownership becomes. Investigators and interviewers are no different. The professional fact finder must divest herself from any interest in the outcome of her investigation or interview. This is not to say one may not be interested in the outcome or take pride in her work. No, the fact finder must instead be impartial and not allow her loyalty and self-interests to interfere with the fact finding process or the interviews she conducts. This unique characteristic is the trademark of a true professional.
There are two effective ways the professional can demonstrate her impartiality.
The first is to not decide the investigation’s objectives. By removing oneself from deciding objectives, it is reasonable to conclude that the fact finder has little investment in the outcome. By not deciding the objectives of the investigation, the fact finder and interviewer have no vested interest in the effort’s results. She risks no investment of pride and has no agenda to prosecute.
The second way the professional can demonstrate her impartiality is by exclud-
ing herself from any decision-making process at the conclusion of the investigation.
By not being party to the decisions regarding discipline or corrective action, the professional has no say in the outcome. The individual has isolated herself to the solitary role of fact finder and interviewer. Arguably, she is neither judge, jury, nor prosecutor. And without interest in the investigation’s objectives or its outcome, it is nearly impossible to accuse her of any bias or prejudice. To claim that she has any partiality is illogical and offends the evidence to the contrary.
3.2.4 Ethical
As my organization’s chief ethics officer, this is a subject dear to my heart. It would be fair to argue that impartiality is an ethical characteristic. However, my use of ethical in the context of describing the necessary characteristics of the professional investigative interviewer is far more expansive. The American Heritage Dictionary®
Investigative Interviewing: Psychology, Method and Practice Page 12