Investigative Interviewing: Psychology, Method and Practice
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defines ethical as:
eth–i–cal ( ĕ th'ĭ-kel) adj.
Of or dealing with ethics
Being in accordance with the accepted principles that govern the conduct of a
group, esp. a profession2
As the definition suggests, ethics is a collection of “accepted principles that govern” a particular group or profession. In this case, the operative term is profession.
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In order to be professional, the interviewer must adhere to an assortment of guiding principles any reasonable person or trier of fact would embrace as proper. Actions, such as truthfulness, honesty, and impartiality, collectively constitute ethical behavior. To be ethical requires the fact finder to behave in such a fashion as to protect the rights of those under investigation, obey the law, and to protect the integrality of the process. The preamble for Private Investigators’ Association of British Columbia’s Code of Ethics and Professional Conduct elegantly captures this essence with the following:
Private Investigators have an important role to play in society. In per-
formance of that role, the investigator’s actions have an effect on the welfare of other people. Because of their social responsibilities, members of a profession are obligated to act in the interest of these other parties, who
have a stake in the nature and quality of professional activities. These
stakeholders include employers, clients, various identifiable third par-
ties, and the public at large.3
To put it another way, ethics for our purposes are the rules of conduct by which members of a profession or group regulate their behavior among themselves and
with all other persons with whom they deal.
For example, if the fact finder uncovers exculpatory evidence, exonerating his
subject, he brings it forth and reveals it. If the fact finder hasn’t the evidence to accuse his subject, he does not conduct an accusatory interview of that subject. If the fact finder knows the employer is likely to discharge an offender who makes an admission, the fact finder does not tell the subject an admission will cleanse his soul, and that his job will be protected if only he makes a “confession.”
In this sense, ethics provide us guardrails within which we conduct ourselves,
business, and interaction with others. Though many deny it, ethics also provides the construct on which all laws and freedoms are based. A quick look at the U.S.
Bill of Rights affirms this assertion, as illustrated in Figure 3.1.
Tip: Treat all of your subjects with respect and dignity. Remember: A reputation of being ethical takes years to develop and moments to destroy.
Professional ethical behavior in this sense is not something we simply possess, it is something we must live. It is something that requires work and constant attention. Even then, the effort to be ethical can pose challenges. For those occasions, I have fashioned for myself this simple ethics test:
◾ Is it legal?
◾ Is it fair?
The Fundamentals of Interviewing ◾ 65
A summary of each right as provided by the U.S. Bill of Rights when adopted in
1791
I.
Freedom of religion, speech, press, assembly and petition
II.
Right to keep and bear arms
III.
No quartering of soldiers in time of peace
IV.
No unreasonable search and seizure
V.
No unlawful imprisonment; double jeopardy, self-incrimination; taking
of private property without just compensation
VI.
Speedy trial, opportunity to confront witnesses
VII.
Trial by jury
VIII.
No excessive bail, no cruel or unusual punishment
IX.
Preservation of states’ rights, residual rights to the people
X.
Federal reservation of rights, residual rights to the state or people
Figure 3.1 A summary of each right as provided by the U.S. Bill of Rights when adopted in 1791.
◾ Is it balanced?
◾ Is it necessary?
◾ Is it consistent with our organizational values?
I adopted this test from something I heard discussed at a Rotary International
meeting. The members (they called themselves Rotarians) shared with me what
they were discussing, something they call The Four-Way Test. According to Rotary International’s website (https://www.rotary.org/en/guiding-principles), “The Four-Way Test is a nonpartisan and nonsectarian ethical guide for Rotarians to use for their personal and professional relationships. The test has been translated into more than 100 languages, and Rotarians recite it at club meetings.” It goes like this: Of the things we think, say, or do
1. Is it the TRUTH?
2. Is it FAIR to all concerned?
3. Will it build GOODWILL and BETTER FRIENDSHIPS?
4. Will it be BENEFICIAL to all concerned?
Quaint, but powerful. I was so moved by it I created my own ethics test. Since
the creation of my simple little test, it has helped me successfully confront dozens of
66 ◾ Investigative Interviewing
ethical dilemmas and has yet to fail me or my customers. Here is one example. The matter began with an anonymous tip from a concerned employee. The employee,
using his employer’s anonymous incident-reporting mechanism (in this case, a toll-free hotline) reported that a small group of co-workers had been co-opted by a
foreman and were regularly assisting him divert material from a large jobsite to a relative’s home. The concerned individual (CI) also reported that the thieves frequently drank on the job and that on more than one occasion the foreman had
nearly wrecked a company vehicle while driving when impaired. The report was
quickly passed up the chain of command and soon was on the desk of the CEO.
He immediately called my office and requested advice. As the reader might imag-
ine, I suggested that some fact finding was in order. Work orders, timecards, and inventories needed to be examined. First order of business when allegations of this sort are received is to somehow substantiate them. I outlined for the CEO an appropriate plan and he instructed me to coordinate the effort through his director of human resources, a woman with whom I had worked previously. In a short time,
together we were able to corroborate some of the allegations and uncover additional irregularities. We quickly packaged the result and recommended that my team
interview the suspected transgressors. The CEO balked, however. Concluding that his human resources director better knew the personalities involved and his organization’s processes, he directed her to conduct the interviews. Experienced as she was with routine internal investigations, she had never confronted or interviewed anyone suspected of such serious offenses. Reluctantly, she proceeded and resultantly failed miserably. Not a single individual made an admission. Instead, to a person, each accused her and the organization of a witch hunt. Inexperienced in conducting difficult investigatory interviews, she visibly demonstrated her uneasiness and lack of confidence. She was unable to overcome the most meager of denials, and
quickly found herself and her employer defending the investigation and all of the evidence it had produced in court. I was ultimately designated as a witness. In preparation for my testimony, the attorney representing my client asked me to testify that I thought the human resources director had the experience and skill necessary to conduct the investigative interviews she had undertaken and that her efforts had met industry standards. It is not hard to see the value of such testimony. However, applying my ethics test, I respectfully declined the request. Instead I offered to tell the truth and testify (I paraphrase) that she was an experienced and highly qualified HR professional, but her effort was less than t
hat of current industry standards.
However, because she was not a professional investigative interviewer, she ought not to be held to the standard of one. As such, the outcome of the investigation should not be judged on her conduct or result, but on the result of the underlying investigation that had been performed. The matter was soon settled for a small sum and, in exchange for the settlement, the employees involved in the theft agreed to resign.
This example demonstrates that professional ethics is not just the words that
comprise an organization’s code of ethics but the way the organization behaves.
Thrusting a little deeper, ethical behavior is a component of an organization’s broader
The Fundamentals of Interviewing ◾ 67
Commitment
"Putting the
Assessment
right people
and audit
Principled
on the bus"
Compliance®
Takes Place
Here
Culture
Infrastructure
management
Figure 3.2 Sustaining Principled Compliance™ is a process and involves con-
stant effort on the part of an organization and its members.
goal of something I call Principled Compliance. ™ The state or condition of principled compliance is achieved by properly aligning an organization’s culture with effective governance. That governance includes its policies, procedures, practices, and codes, which regulate and prescribe the behaviors of those comprising that culture. To perpetuate principled compliance, the organization and its members must work at it. Figure 3.2 illustrates the relationship of the elements involved in that effort.
Because the examination of ethics and ethical behavior is not the purpose of
this book, I will end this discussion here. For more information on the topic of organizational ethics and ethics management visit The Open Compliance and
Ethics Group website (OCEG.org). OCEG is a global nonprofit think tank and
community. Its mission is to help organizations achieve higher performance by
integrating governance, assurance, and management of performance, risk, compli-
ance, and ethics.
3.2.5 Fair
Fairness like beauty is in the eye of the beholder. In workplace investigations, the beholder may be your boss, the director of human resources, the CEO, or a judge.
In order to be effective, the fact finder must be fair. But fairness takes many forms.
To be honest and ethical, in fact, may be fair, but to be fair to the individuals one investigates is paramount and a trait of a true professional.
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Fairness is being truthful to the one we are interviewing. When he asks what
evidence we may have against him, it is telling him the truth. It is not embellishing the quantity or quality of that evidence. It is not telling him the evidence is irrefutable when we know it is not. It is not telling him he may not leave when, in fact, he has the right to do so. It is not telling him everyone knows he is guilty and it is only you that thinks so. Being fair is being honest. It is being professional in our actions and with our words. Being fair results in the ability to look oneself in the mirror and not be ashamed of what we see. It is not being ashamed of ourselves, our actions, or our organization. Here is a short list of interviewer behaviors that are typically considered unfair (unlawful in some instances):
◾ Mistreating the interviewee and inflicting psychological damage
◾ Making threats
◾ Making illegal promises
◾ Using coercion
◾ Using duress
◾ Using force or the threat of force
◾ Employing ruthless or intimidating methods
◾ Falsely imprisoning the interviewee or holding him against his will
◾ Failing to treat the interviewee with dignity and respect
3.2.6 Deliberate
Lastly, the fact finder must be deliberate. His actions must be purposeful. He must not prosecute some personal agenda or grievance. The fact finder must act with
reason and reason his actions. The fact finder that is deliberate is decisive. He works his plan, and plans his work. His process has purpose and meaning. Each action
has a method and function. All actions have meaning and are engineered to fulfill a reasonable and lawful end.
The professional fact finder does not waste time and resources. If his plan is
flawed, he confronts and corrects its defects. He rectifies his shortcomings and is always conscious of his objectives. Everything he does is a means toward a fair, honest, and ethical conclusion.
The literature is replete with lists of qualifications good interviewers should possess. While I think the examination above is complete, I would be remiss to not share with you some of the other qualifications my colleagues consider important.
In no particular order, list includes:
Observant
Dedicated
Resourceful
Self-starter
Patient
Skeptical
People oriented
Intuitive
Understanding Energetic
The Fundamentals of Interviewing ◾ 69
Effective communicator
Intelligent
Receptive
Consistently uses good judgment
Professional
Honest
The list could be expanded, but I suspect you get the idea. So, in the interest of time, let’s move to another fundamental aspect of investigative interviewing, that of organizing one’s self and the information in our possession or about to come into our possession.
3.3 Evidence Collection and Management
By definition, all fact finders engage in the collection of information. In Chapter 1, we learned that one of the essential elements of a successful investigation is the crafting of meaningful objectives. The objectives of the investigation will drive what facts and evidence are to be gathered. For example, if one of the objectives of the investigation is to determine who was responsible for the disappearance of $1,000 from the office safe, we might start by creating a list of the facts and evidence necessary to meet that objective. Effectively, we can create an investigative task list. In no particular order, here is a partial list:
◾ Determine who had access to the office that contained the safe
◾ Determine who had access to the safe
◾ Determine who discovered the loss and when
◾ Determine who had put the $1,000 into the safe
◾ Determine who had last seen the $1,000
◾ Confirm that the $1,000 was actually put into the safe
◾ Determine the source of the $1,000 and why it was stored in the safe
◾ Determine cash handling and security procedures
◾ Determine cash audit procedures and responsibility
◾ Determine if the procedures were followed (if not, who violated them and
why)
◾ Determine who knew the $1,000 was in the safe
◾ Determine if those who knew of the $1,000 shared that information with
anyone else
◾ Determine if other similar losses had ever occurred and, if so, obtain the
details
This is not an exhaustive list. But, as you can see, the simple exercise of listing tasks and identifying the various pieces of information needed to understand the circumstances surrounding this hypothetical loss has significantly focused our effort. Additionally, if we were able to obtain this information, we would substantially reduce the size of the suspect pool, if not identify the perpetrator. Other
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pieces of the puzzle also fall into place as well. For example, we may discover process failures, or the lack of adequate controls—information that might be critical to formulating a prevention strat
egy for the future. In situations in which the subject matter or circumstances are far more complex, the process can be modified where we create subtasks to some of the action items on our task list. Experienced fact finders will find that over a period of time workplace investigations of a similar type take on similar themes. By tracking these recurring themes, the fact finder will eventually create for himself a portfolio of forms, checklists, action items, and processes for each of the assorted investigation types he has conducted.
You probably also realized this list includes many of the questions the inter-
viewer will pose during his interviews, whether administrative or investigatory.
Thus, without leaving his desk and with nothing more than what may constitute a simple allegation, the fact finder has already begun determining what is known and unknown about the matter in question. The list also reveals some of the responsibilities of the stakeholders and process owners he will wish to interview. By priori-tizing the list and ordering the questions such that the answer of one leads to the next, he has also begun to formulate the line of questioning and fact finding he will employ during his interviews.
3.3.1 Documentation
The fact finder must next document and catalog that which she intends to gather.
In some orderly and easy-to-use fashion, she must organize, tag, label, and store the evidence she collects. Concurrently, she must document her efforts, those of her team members (should she be directing the effort of others), and begin thinking about the preparation and form of her final report. In the case of simple matters, this effort is rather straightforward and almost intuitive. However, complex matters require a great deal more organization. I for one have handled matters
involving tens of thousands of documents and scores of evidentiary tidbits. Absent a structured process and high degree of organization, the production of a 1,500+-
page report would not be possible.
3.3.1.1 Organizing Oneself and Materials
Should the matter under investigation be sufficiently complicated, begin with a three-ring binder. In it place all notes and collateral documents. The items should be placed in the binder in the order in which they are created or developed. Preliminarily Post-it®
notes can be used as temporary tabs. Later, as the investigation begins to take shape, tabbed separators can be inserted to help segregate and organize the information.