Investigative Interviewing: Psychology, Method and Practice
Page 15
reason. The destruction of evidence very often provides one party an advantage
at the expense of another. Recent cases involving the employees, and, in some
instances, the agents (outside accountants and auditors) of public companies intentionally destroying documents and critical records demonstrate the consequences.
Litigation and criminal indictments of both the organization and the responsible parties are not uncommon. Worst yet, maybe, is the damage to the organization’s reputation and the loss of public confidence in the markets. The destruction these acts can cause can be incalculable. Even the destruction of evidence during a simple workplace investigation can have grave consequences.
During the fact finding process, should items such as emails, notes, and appar-
ently extraneous documents be discarded, claims of spoliation may later arise. In emotionally charged cases, such as those involving the claim of discrimination or sexual harassment, accusations about the destruction of evidence are common.
Furthermore, they are difficult to disprove. The mere fact the alleged document (which may have never existed) cannot be produced inferentially suggests that it was destroyed. In most cases, only testimony can be used to prove the document
didn’t exist (think of one’s personal notes and how one would prove they or portions of them didn’t exist). If the credibility of the witnesses used to prove the document didn’t exist is in question, the charge of spoliation has a good chance of gaining traction. If so, the credibility of these witnesses will suffer further damage.
Tip: In the course of your fact finding and investigative interviews, do not destroy anything that may later be considered evidence. The destruction of evidence is considered an obstruction of justice and may be a crime and/or civilly actionable.
At the very least, it looks bad.
The Fundamentals of Interviewing ◾ 79
3.3.2.5 Evidence Retention
For many of the reasons stated earlier in this chapter, evidence retention and preservation has become a popular topic. The mishandling and misplacing of evidence can be catastrophic. The fact finding process must contemplate this issue from the onset. Reconstruction of evidence is time consuming and expensive. It is best to handle it properly from the onset. The favored tool in workplace investigations to catalog and preserve evidence is the evidence file.
An evidence file may be nothing more than a manila folder in which eviden-
tiary documents are placed for safekeeping. Accordion folders, corrugated boxes, file cabinets, or safes also may be used to store evidence. On the extreme end of the spectrum is the evidence locker or compound. Regardless of its form or construction, the purpose is the safe storage of evidence.
In addition to containing evidence, the evidence folder should contain a doc-
ument used to identify and track the evidence within it. Variations of this form are largely a matter of preference. Figure 3.5 represents a typical evidence tracking form.
Trap: Even the routine and scheduled destruction of documents pursuant to an established document management program is not foolproof. Administrators
should routinely conduct inspections to ensure compliance.
3.3.2.6 Chain of Custody
The transfer of evidence from one party to another should be carefully documented.
Each person who handles or takes control of evidence must be recorded, creating what is called the chain of custody. The chain of custody, sometimes called the chain of evidence, is a document that, at a minimum, identifies each custodian, when they received it, and to whom they transferred it. The chain of custody must not be broken. That is, there cannot be gaps during which the evidence was unaccounted for or out of the control of a custodian of record. A chain of custody that is broken exposes it to challenge and jeopardizes the admissibility of the evidence. Figure 3.6
is a sample evidence custody form.
The sloppy handling of evidence exposes both the fact finder and the evidence
to credibility challenges. Claims of evidence tampering, alteration, or contamination are possible when evidence is mishandled. Fact finders should not handle or use originals during their investigation. Whenever possible, copies, photographs, or models should be used in lieu of the actual evidence. Never place an original piece of evidence in the hands of the subject. Knowing the value of the evidence and its implications, the subject may be tempted to not return it or to destroy it.
80 ◾ Investigative Interviewing
Date
Received Received
#
Received
Description
Quantity
From
By
Disposition
1
9-12-11
Hard drive #
1
Jones,
Ferraro, Retained
74223415099-
L.
E.
SH03
2
9-15-11
CD (marked as
1
Parker,
Ferraro, Retained
# EVID 2314-01)
B.
E.
3
9-16-11
CD (marked as
2
Parker,
Smith,
Retained
# EVID 2314-02)
B.
T.
4
5
6
7
8
9
10
11
12
13
14
Figure 3.5 Evidence tracking form.
Tip: Establish a chain of custody for each piece of evidence. Do not take originals into the field. Use copies, photos, and models instead of the actual evidence.
3.3.3 Reporting and Communicating Results
Because the fact finder should not be a decision maker in the process of deciding discipline, whenever possible the fact finder and decision maker should be two
separate people. The fact finder’s role should be strictly that of fact finding. His process should be driven by the objectives of the investigation with the intention of providing his result to a party outside of the fact finding project team. As a
The Fundamentals of Interviewing ◾ 81
EVIDENCE CUSTODY FORM
COLLECTION INFORMATION
DATE: __________________________________________________________________
TIME: __________________________________________________________________
LOCATION: ____________________________________________________________
SUBJECT’S NAME: ______________________________________________________
DESCRIPTION OF EVIDENCE: ____________________________________________
_______________________________________________________________________
_______________________________________________________________________
NAMES OF PERSONS HANDLING EVIDENCE
1. _____________________________Time/Date: _____________________________
2. _____________________________Time/Date: _____________________________
3. _____________________________Time/Date: _____________________________
4. _____________________________Time/Date: _____________________________
5. _____________________________Time/Date: _____________________________
6. _____________________________Time/Date: _____________________________
7. _____________________________Time/Date: _____________________________
Figure 3.6 Evidence custody form.
practical matter, the fact finder should report to someone not actively involved in the investigation.
This, of course, is easier said than done. In small organizations, it is nearly impossible. Even in large organizations there may not be the bandwidth to support the hierarchy of separate powers and responsibilities. Similarly, very complex or sensitive inves
tigations involving organizational members at the corporate, or C
level, may preclude distinctive roles of the participants. In these instances, other safeguards to ensure fairness and impartiality are necessary. One of them is the use of an outside counsel.
Lawyers are expensive and the decision to hire one should be made very care-
fully. Few organizations engage them without having a very special need or desire.
However, in the case of workplace investigations, outside counsel can bring so
much to the process that their use should be considered every time an investigation
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of any substance is contemplated. The properly selected attorney will have the legal knowledge and experience that insiders do not. Competent outside counsel will
have resources and time to oversee a complex investigation, and more than likely have handled similar situations and challenges in the past. Outside counsel should be able to provide the counsel and advice needed to make the best decisions when they are needed. Outside counsel also will be viewed as more impartial. Although by definition, outside counsel is an advocate, he or she is still an outsider. They should not be carrying the same baggage as an individual internal to the organization. Nor should they have had the past experiences and interactions with the subject, witnesses, or others involved in the investigation. Usually they lack the history that might cloud their judgment and impartiality. Furthermore, outside counsel
can be the voice of reason. When temperatures rise and emotions begin to surface, the properly selected attorney can be the voice of reason and the corporate therapist that quiets the waters. He or she also can assuage egos, expose hidden agendas, and mediate differences.
Inside counsel can often do these things as well. But, in many instances,
inside counsel lacks some of the specific expertise necessary to do the job properly.
Additionally, most staff attorneys are not litigators. They haven’t the training or the experience (or the time) to prosecute or defend an action. In other instances, house counsel is already a witness. Their participation began at the onset, before the matter came under investigation. They coached human resources, wrote letters to opposing parties or interviewed participants and witnesses. They are conflicted.
They are still able to advise and participate, but, because of their vested interest in the organization, they are subject to the charge of impartiality and self-interest.
Outside counsel offers something else—the ability to protect the investigative
work product and result from discovery. If litigation is underway or litigation is anticipated, and the investigation is performed under the direction and supervision of counsel, the work product produced by the fact finders can be protected from discovery and the requirement to be produced. Under the doctrine of the
work product privilege, all that the fact finder does and produces can be deemed privileged and withheld during discovery. Furthermore, all of the communications between the employer and the attorney are privileged as well. Like the attorney work product privilege, the doctrine of attorney–client privilege protects attorney–
client communications from discovery. And for good reason. In order to preserve the integrity of our legal system, it is held that the attorney’s effectiveness is significantly impacted by his ability to communicate confidentially with his client.
Under the privilege, even the client’s admission of guilt is protected. In the case of workplace investigations, all aspects of the matter can be protected. Damaging statements, memos, and other communications created during the investigation
can be withheld once the privilege is invoked. Unfortunately, this powerful protective tool is often overlooked and underutilized.
Like many good things, the privilege has its limitations. It is only a tool. It is not a shield. One cannot hide behind it in order to deceive or cover up criminal
The Fundamentals of Interviewing ◾ 83
activity. One cannot use evidence that he holds privileged in the prosecution or defense of his case and not disclose it to the other side. In workplace investigations this can create an unexpected dilemma. If, for example, an employer that
possesses information provided by a confidential informant and wishes to use it to discipline an employee, cannot claim that the information is privileged. In order to use the information, it has to disclose it if challenged. The operative term here is if challenged. Absent a challenge, the employer is likely to be able to consider and use any evidence it wishes, regardless of its source. The easiest work-around to the confidential informant dilemma is not to use the informant’s information directly.
Instead, use the information provided by the informant to further the investigation from another direction. That is, the informant’s information is only used as intelligence. With it, the project manager can engineer another investigative solution, then produce the results of that effort as the primary evidence for the purpose of deciding discipline.
The reader should not confuse outside counsel’s role with that of a decision
maker. Outside counsel, like the fact finder plays a functional role that does not include making decisions regarding discipline. If at all possible, the decision maker should have no other role than deciding discipline. Segregating the role of the participants reduces the likelihood of claims of impartiality and unfairness. Because the standard of proof of good faith/reasonable conclusion is so low, appearances of impartiality or unfairness can jeopardize the credibility of the entire process.
For the purpose of clarity, it should be mentioned that the attorney work prod-
uct and attorney–client privilege can be invoked by either outside or inside counsel.
The attorney need not be external to the organization.
3.4 Summary
You might be wondering why I thought it necessary to spend so much time and
space on everything leading up to the actual investigative interview when the title of this book is, The Investigative Interview. In my two-day training course on investigative interviewing, after the first half day, my students are often wondering the same thing. It is only at the end of the second day do they finally appreciate the answer. However, I provided you the answer in the first chapter. Read it again.
Tip: The information gathering and fact finding phase of the investigation is not an end but a means. It affords the investigator the information he needs to interview the subject and successfully obtain an admission.
One cannot be a successful investigative interviewer without first understand-
ing the process of investigation or grasping the assorted fundaments and their
84 ◾ Investigative Interviewing
many intricacies. Of the many works I read or studied while writing this book, few even mentioned the things and details I have offered you at this point and those that did failed to explain them in the detail I have for you. Do not undervalue the importance of this chapter or the two that preceded it. Your command of the information and technical material I have provided thus far is essential to your success as an investigative interviewer. I hope you study and use every bit of it.
3.5 Frequently Asked Questions
1. My employer refuses to consider hearsay evidence when deciding discipline.
Why the resistance and what can I do to change the mindset?
The resistance to use hearsay evidence for the purpose of deciding discipline is a common error. It is the result of not knowing the law and mistakenly choosing a standard of proof that exceeds that which is necessary. Ask your decision makers to read this chapter or talk to a competent employment law attorney.
2. My organization expects its fact finders to provide recommendations. You
make a good case against it, but how do I convince my organization to change
that expectation?
Train your decision makers. Inform them that providing recommendation is not a best
practice and doing so diminishes the claim of a fair and impartial investigation. If they still require you to provide recommendations, provide them after the discipline has been dispensed so as to thwart the claim of fact finder bias. For a very detailed examination of this issue, see the FAQs at the end of Chapter 4, specifically no. 4.
3. I always reduce my handwritten notes to some form of a clean electronic document and then destroy the original notes. Why shouldn’t I continue that practice if my electronic versions are, in fact, exact copies of those that were handwritten?
Because the destruction of evidence (and your notes are evidence) may be considered spoliation. Spoliation is actionable and, for it, sanctions can be imposed. It also looks bad. It creates the appearance that the fact finder is attempting to hide something. Moreover, if the electronic version is “identical” to the handwritten version, why did you waste the time and create a new duplicate if all you had to do was photocopy it? By the way, your notes need not be readable by anyone but you. Once during a deposition, a snide attorney exclaimed that he could not read my notes and asked my why. I answered, “Because I wrote them for my use, not yours.”
4. I have heard that digital images are often not viewed as reliable evidence
because they are so easily manipulated. Is that true?
No and yes. Digital images are frequently considered reliable evidence. However, because they are easily manipulated, extreme care must be taken in the handling and management of them when they are intended for evidentiary purposes.
The Fundamentals of Interviewing ◾ 85
Remember also that the credibility and reliability of any evidence (digital included) is only as strong as the credibility and reliability of the individual used to introduce it to the trier-of-fact.
Endnotes
1. For the purpose of readability, from this point forward in this book you will notice I will sometimes use the words interviewer, investigative interviewer, and fact finder interchangeably. While not all interviewers are investigative interviewers, both are fact finders. When it is necessary to differentiate the activities of these roles, I will clearly indicate such.