Investigative Interviewing: Psychology, Method and Practice
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2.
The American Heritage Dictionary of the English Language, 3rd ed. (Boston: Houghton Mifflin Company, 1994).
3. Private Investigators’ Association of British Columbia, webpage http://www.piabc.ca/
ethics/ (accessed November 7, 2013).
4. J. John Fay, Encyclopedia of Security Management (Woburn, MA: Butterworth-Heinemann, 1993), 291.
5. Martin Roth, The Writer’s Complete Crime Reference Book (Cincinnati, OH: Writer’s Digest Books, 1990), 271.
6. Ibid., 277.
7. H. C. Black, Black’s Law Dictionary, 6th ed . (St. Paul, MN: West Publishing Company, 1997), 1257.
Chapter 4
The Investigative
Interview Method
Key learning points:
1. The Investigative Interview Method™ does not employ interrogation.
2. As a matter of general practice, investigatory interviews are reserved for those we know or have a strong reason to believe have committed an offense.
3. Most often the purpose of conducting an investigatory interview is to obtain an admission. An admission is among the most valuable benefits of an investigative interview.
4. Investigative interviews do not use intimidation or coercion; they are highly structured and process-driven.
5. Investigative interviews unfold iteratively and have seven distinct phases.
6. Successful investigative interviewers are professional, ethical, and honest with whom they interview.
“Honesty will be provided to the extent it is expected.”
E. F. Ferraro
87
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4.1 Differentiating Interviews from Interrogation
As mentioned in Chapter 1, the terms interview and interrogation mean different things to different people. Often these terms are used interchangeably, confusing both the user and the public. However, according to some professionals, there are significant distinctions.1 Readers familiar with The Reid Technique® know this popular method defines an interview as nonaccusatory (see www.reid.com). The technique uses the interview to gather information. These interviews are free-flowing and relatively unstructured.2 Alternatively, the technique proposes that the interrogation is accusatory and its purpose is to gain the truth.3 The Reid method also proposes that an interrogation involves active persuasion to “learn the truth.” I respectfully disagree with this distinction and the use of the terminology in this fashion. While I have the utmost respect for the proponents and users of the Reid methodology, I think the technique provides the fact finder limited value in the context of most workplace investigations. Instead of arguing the point or criticizing my professional colleagues, I suggest that the reader research The Reid Technique and decide which method is best suited for his or her purposes. While at it, I also suggest the reader examine other popular methodologies. In fact, there are many. However, the methodology I offer herein has been tried and tested by me and my associates. My investigative interview method is the product of over 30 years of experience and thousands of workplace interviews. It represents that which my associates and I have learned and perfected while working in dozens of industries, investigating all types of misconduct, and dealing with innumerable personalities and cultures. This powerful method has successfully withstood grueling legal challenge time and again.
Trap: Remarkably, some fact finders choose not to interview anyone. Based on the results developed using one or more of the other methods of investigation, they conclude that interviewing is unnecessary. Regardless of the quality of information at hand, at least interview your subject. As reasoned by the Court in Cotran,4
the term good cause when for the purpose of deciding discipline is 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.” [Emphasis added]
In summary, the advantages of the investigative interview method include:
◾ A nonaccusatory approach
◾ It does not use intimidation or coercion
◾ A process that is highly structured
◾ Consistent results
◾ It is easily learned and replicated
The Investigative Interview Method ◾ 89
ethical
and
effective
the
Investigative
Interview
Method (I2M)
easy to
learn and
replicate
Figure 4.1 The investigative interview method.
Additionally, the method diminishes the likelihood of false admissions (com-
monly referred to as false confessions), is court admissible, and time-tested and proven. Figure 4.1 illustrates these points.
4.2 Eight Phases of the Investigative Interview
In spite of their many advantages and structured methodology, investigatory interviews are complex undertakings. They are psychologically demanding and require
a high level of mental concentration. While investigatory interviews are nonaccusatory, typically the subject is either known to have committed the offense in question or the interviewer has very good reason to believe that he has. Its primary purpose is to obtain an admission. As you will recall, an admission differs from a confession in that a confession typically includes all of the elements of the offense. Those elements might include such things as motive, intent, state of mind, and capacity.
An admission is a simple statement of guilt. For disciplinary purposes, most private sector employers need only make a reasonable determination of guilt. The employer need not prove all of the elements of the crime in order to impose corrective action.5
Therefore, a properly obtained admission from the offender meets the employer’s burden of proof. For this reason, it should be no surprise that employers place great value on an admission. Only uninformed or misguided ones attempt to prove all of the elements of a crime and obtain confessions.
Tip: As a matter of general practice, investigatory interviews are reserved for those we know, or have a strong reason to believe, have committed an offense. Most often the purpose of conducting an investigatory interview is to obtain an admission.
90 ◾ Investigative Interviewing
Investigative interviews also are valuable because they:
◾ help fulfill the employer’s due process obligations;
◾ allow the fact finder to obtain another perspective as to what may have
occurred; and
◾ allow the fact finder to learn who else might be involved and why.
Using the investigative interview method, our investigatory interviews will
unfold iteratively. What’s more, this powerful method can be combined with any
other method and used in places other than the workplace. Our methodology has
eight distinct phases:
Phase I: Preparation
Phase II: Introduction
Phase III: Presentation
Phase IV: Admission
Phase V: Discussion
Phase VI: Written
Phase VII: Oral
Phase VIII: Conclusion
The Investigative Interview Method, or I2M as my firm calls it, is structured
but flexible. When properly employed it can be used to address every type of workplace misconduct the fact finder might confront. Let’s begin with the first phase, that of preparation.
4.2.1 Phase I: Preparation
The Preparation Phase involves planning. In this phase, we will consider the following:
◾ Safety and the need for additional security
◾ Determining who should be interviewed
◾ Location for the interview
◾ Selection and preparation of the interviewer
◾ Case file preparation
◾ Theme and question development
◾ The request for representation
/> ◾ Selection and use of witnesses
◾ Timing
Of all of the planning issues to be considered, safety and the need for additional security may be one of the most important. This is an over-arching issue that runs through every aspect of the process. Therefore, to improve readability and avoid
The Investigative Interview Method ◾ 91
some redundancies, I will incorporate aspects of this issue throughout this section and not dedicate space to it here. Instead, let’s address the other considerations with some specificity.
4.2.1.1 Determining Who Should Be Interviewed
Determining who should be interviewed is sometimes more complex than it might
first appear. Employers often suggest everyone be interviewed. Interviewing everyone is not a strategy. It consumes time and valuable resources, and it is wasteful. The investigative team should consider the project’s objectives, time restraints, and budget before agreeing to interview everyone. A better approach is to first determine what information is needed and then interview those that possess it.
For example, recently, during a complex fraud investigation that I was conduct-
ing, my client asked that every one of his employees be interviewed. While it is true my firm is in the business of conducting workplace interviews, to interview everyone was not in my client’s best interest, and I told him so. Instead, we selected those who we believed were most involved. Then, very tactically we decided the order in which they should be interviewed. In the final analysis, this approach proved to be very productive and cost effective.
If the investigation is done properly, it is likely that the results clearly indicate who should be interviewed. If the results identified multiple offenders, I generally select those most involved and central to the issue. If there is more than one principal, I will select the one my investigative teams believe will be the most cooperative and likely to be truthful. Interviewing this person first and assuming he will cooperate and be truthful will yield an admission as well as actionable information concerning others. This corroborative evidence will aid the interviewer in the subsequent interviews, but also strengthen the case against his co-offenders. Should one or more of them deny involvement, the combination of the preinterview result and the corroborative evidence provided by those who cooperated should be sufficient to support the corrective action chosen by the decision makers. In situations involving multiple offenders, this strategy tends to compound the amount of informa-
tion developed. Thus, the interviewer is provided more and more information and detail going into each subsequent interview. The usefulness, if not obvious now, will become abundantly clear when we examine the presentation phase of the interview.
Not all situations permit the use of this strategy. In matters involving allegations of harassment or discrimination, the identity of the most serious offender may not be possible. In classic “she said, he said” cases, the accuser is usually interviewed first. Then, armed with that which she provides, combined with the evidence produced from the various fact finding methods used, the accused is interviewed. In situations where even this strategy is not possible, the investigative interviewer must resort to simply selecting the valuable interviewee. In these situations, value is a subjective determination. Some of the factors one might consider include:
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◾ How much useful information the subject might possess
◾ Years of service (thus, possibly offering an historical perspective)
◾ Familiarity with the issue and process failures that contributed to it
◾ Communication and social skills
◾ Respect for authority and management
◾ Level of suspected or known involvement
◾ Work history
◾ Reputation for honesty and integrity
◾ Safety
4.2.1.2 Location for the Interview
Assuming we have decided who to interview and who should interview them
(see Chapter 5, section 5.31), the next thing to determine is where the interviews should take place. As with administrative interviews, investigatory interviews
should not be conducted in the subject’s office or work area. A neutral location on or off organizational premises is best. Although I have conducted interviews in hotel lobbies, noisy restaurants, landfills, and in automobiles, the best places are quiet, private, and comfortable to both the interviewer and interviewee. Small conference rooms, meeting rooms, and private offices are best.
Once the location is decided, it should be properly prepared. If possible, the
furniture in the room should be arranged so that the interviewee will sit closest to the door. The interviewer should sit so that there is no obstacle between him and his subject. If the room contains a desk, the interviewer might sit behind and configure the remaining furniture so that the subject will sit to the side of the desk instead of in front of it. If a witness is to be present, she should be placed so as to be out of view of the subject yet not sitting behind them or blocking the room’s exit.
Knickknacks, heavy objects, unnecessary documents and paperwork, sharp
objects, and other distractions should be removed from the desk or table. Any visible clocks, valuables, or other distractions also should be removed from the room.
Blinds should be drawn and windows covered in order to provide adequate pri-
vacy. The extent to which windows are covered should be considered carefully. The interviewer should balance the quest to provide adequate privacy with the possible appearance of trying to isolate the interviewee. A poorly chosen location can give rise to the annoying allegation of being “interrogated tirelessly in a windowless room.” Figure 4.2 illustrates the arrangement of the room.
Notice that the interviewer has chosen not to sit behind the desk and the interviewee sits closest to the door. Both the witness, whose role we will examine later in section 4.2.1.7, and security (if used) or any other nonparticipating witness are out of direct view of the interviewee.
The Investigative Interview Method ◾ 93
Security or non-
participating
S
witness should
sit here
The interview
W
witness should
sit here
Conversational
Moderate
Intimate
S
I
Figure 4.2 The arrangement of the interview room.
Tip: If the concern for safety is so great that you do not feel comfortable allowing the subject to sit closest to the door, do not conduct the interview.
This arrangement allows the interviewer to use proxemics and prevents the other participants from distracting the interviewee. Proxemics allows the interviewer to use spatial orientation and the distance between himself and the interviewee during the interview as a form of nonverbal communication with the interviewee. The closer he is to the interviewee, the more intimate or personal his questions and messages will be perceived. The further his distance from the interviewee, the more he will appear to be disengaged and unsatisfied with the interviewee’s responses. For example, when posing a question that seeks an admission, I will sometimes move
closer to the interviewee as if I am sharing a secret. If he answers with a denial, I might push away, visibly using my hands to distance myself from the subject and the desk. Combining this movement with the slightest turning away of my head,
94 ◾ Investigative Interviewing
as if disgusted (but much more subtle), the interviewee has no choice but to think I have rejected his answer. Thus, without speaking a word, I have communicated
that I think his response was not honest.
Proxemics is a subcategory of the study of nonverbal communication along with
haptics (touch), kinesics (body movement), vocalics (paralanguage), and chrone-
mics (structure of time).6 P
roxemics is best described as “the interrelated observations and theories of man’s use of space as a specialized elaboration of culture.”7
Edward T. Hall, the cultural anthropologist who coined the term in 1963, empha-
sized the impact of proxemic behavior (the use of space) on interpersonal communication among humans. Hall believed that the value in studying proxemics comes from its applicability in understanding the way people interact with others in daily life. In his work on proxemics, Hall separated his theory into two overarching categories: personal space and territory. Personal space describes the immediate space surrounding a person, while territory refers to the area that a person may “lay claim to” and defend against others. Figure 4.3 identifies and characterizes this personal space for our purposes.
The location of the interview should be convenient to all parties. The loca-
tion should be comfortable and private. However, unless absolutely necessary, the interview should not take place in the interviewee’s office or immediate work area.
Generally, such locations provide too many potential distractions to the interviewee and offer inadequate privacy. A borrowed office, small conference room, or some other place that is mutually agreeable to the parties is often the best.
Intimate Location at 2 feet
Moderate Location
at 2 to 4 feet
Conversational Location
at approximately 6 feet
Figure 4.3 The special orientation and distances between people is called prox-
emics. For the purposes of investigative interviewing, these are the distances between the interviewer and the interviewee.
The Investigative Interview Method ◾ 95
If at all possible, the subject should not be interviewed in his/her home.
Circumstances often make this choice convenient. However, the interviewer should resist the temptation and choose another location. One’s home is very private and, for the purpose of conducting an investigative interview, it is usually not suitable.
Moreover, in the home of the interviewee, the interviewer is strictly a guest and has no control over the environment. Pets, television, family members, and visitors can be distracting and disruptive. Additionally, the home interview poses privacy and safety issues. Before agreeing to interview someone at their home, carefully consider all alternatives.