important.
With confidence and conviction, the interviewer is affirming the results of his investigation. He is not asking if the subject is guilty, he is asking why he is guilty.
Unlike other popular methods of interrogation, the interviewee is not asked a string of leading questions or subjected to an obviously contrived conclusion offered up in a transparent interrogation disguised as an interview. I have found that most people are
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not so easily convinced that an interviewer has evidence of their guilt simply because he says he does. Most people, even those who have no intention of lying, want to be convinced that evidence exists. Only by explaining how an investigation might be conducted and offering some detail regarding the methods of investigation can we hope to convince a reluctant interviewee to come clean and make an admission.
4.2.4 Phase IV: Admission
Next, in order to move the interviewee to providing an admission, the interviewer needs to impose some conditions. The conditions create the appearance of an obstacle of which the interviewee must overcome in order for the interview to go forward and he be allowed to explain his actions. Appropriately, those conditions involve honesty. The conditions might be framed like this:
In order for us to discuss this matter and for you to have the opportunity to explain what took place, you need to agree to do two things. Both have to
do with honesty. The first is to agree to be honest with me and the second is to agree to be honest with management (the decision makers).
And, here it is, the first question asked during the investigatory interview: Can you promise to be honest with me? Notice that up to this point the interview
has been a monologue. The interviewer has asked no questions or prompted the
interviewee to respond to his statements. The first question asked is “Can you be honest?”; when delivered properly, it is almost impossible for the interviewee to answer no. Moreover, to reply no, in and of itself is telling and reveals more about the individual than if he simply answered, yes.
By affirming a commitment to be honest with the interviewer and his employer,
the interviewee has given the interviewer something to return to if the subject subsequently denies guilt or minimizes his culpability. Should that occur, reminding the subject of his commitment to be honest causes him to make a conscious choice between honesty and the potential commission of two offenses: the matter in question and lying. It is permissible for the interviewer to tell the interviewee that lying is the more serious offense, if, in fact, it is. The interviewer also can remind the interviewee that the interview cannot continue unless the interviewee is truthful.
The dialogue might go like this:
If you cannot be truthful about what took place, this interview cannot con-
tinue. The decision makers then will have to make their decisions without
your input … and you may not have the chance to explain why you behaved
the way you did. You also may lose the opportunity to offer the extenuating or mitigating circumstance that caused you to behave the way you did.
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Again, without being accusatory, the interviewer tells the interviewee that he
knows he committed an offense. Experience shows that most interviewees at this
point will agree to be truthful. Whether they will is another matter. If the interviewer offered a convincing presentation using a credible theme and communicated a willingness to listen, the interviewee will likely conclude that honesty is now his only choice. If at this point, the interviewee is agreeable and agrees to be truthful, the interviewer can then begin to explore the matter in question. Suggesting the subject start at the “beginning,” the interviewer can methodically move from the events leading up to the incident to the actual incident.
The first step involves asking the subject some simple, nonincriminating ques-
tions. These questions are called truth-tellers. They should be questions of which the interviewer already knows the answers. Asking truth-tellers, the interviewer attempts to build rapport, relax the interviewee, and observe him when responding truthfully. Examples of effective truth-tellers I have used in the past include:
◾ What is your current position?
◾ How long have you worked here?
◾ Where did you work previously?
◾ Compare for me the style of management there to that here?
◾ Do you agree that safety, hard work, integrity, loyalty, respect for others, etc.
(pick one that is applicable to the case) is important here?
The interviewer should record the responses to each question in his notes. It
creates the appearance that the answers to the questions are somehow important
and that maybe the decision makers will use them in deciding the interviewee’s
fate. Instead, the interviewer is carefully making mental (not written) notes of the interviewee’s demeanor and behavior when not hiding the truth. The interviewer
should be professional and personable.
The interviewer should not:
◾ Joke or attempt to humor the subject
◾ Comment on the subject’s physical appearance
◾ Say something that is untrue
◾ Attempt to diminish the seriousness of the offense, issue, or topic of discussion Now the interviewer is ready to obtain an admission. This is done methodically
and carefully. It typically involves asking three simple questions in a very precise order. Using the facts of the case appropriately, the questions unfold as follows:
◾ When did you first realize other employees were doing ?
◾ When was the first time you had the opportunity to join them ( or some variation of this)?
◾ When was the first time you participated?
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The first two questions are designed to allow the interviewee to acknowledge
the offense or offenses in question occurred, without incriminating himself or anyone else. The third question calls for the actual admission. If he hesitates to answer it, the interviewer can assist him by stressing the need to understand the motives behind the subject’s every action; the interviewer can adhere to his conviction of the subject’s guilt without being accusatory. While understanding motive and intent are not necessary for the employer to achieve a standard of proof, asking questions about the subject’s thought processes and intentions allows him the opportunity to save face by rationalizing his behavior. The interviewer can even help in this regard.
The interviewer might suggest:
I have no reason to believe you did this to hurt . Sometimes people
do things they later regret. I think the reason this happened was because you did not think it through. You had good reason to be angry and just made a
bad decision. Is that not correct?
Another approach I often use at this critical moment during the interview is to ask this question:
Would I be truthful if I told management that you only one time?
Insert into this question the appropriate offense. Note that if the inter-
viewee answers affirmatively, he has made a significant admission. If he answers no, the immediate response is to ask: What number would be more accurate? If he offers the unlikely response, never immediately move his attention back to the two commitments and indicate that his response never was not consistent with those commitments. Do not tell him that he is a liar or that he is lying. If he claims that you are, remind him the question was not regarding his truthfulness, but instead asked only: Would I be truthful if I told management …”
[emphasis added].
Once an admission is made, ask these important follow-up questions:
◾ When was the last time you ?
◾ How many times did you ?
Dos and don’ts:
◾ Do not exaggerate the quality or quantity of evidence you have.
◾ Do not claim to have evidence you do not.
◾ Do not show your proof or reveal the identity of any sources.
◾ Discourage the subject from challenging your evidence or the quality of
your investigation.
◾ Do not threaten, coerce, or attempt to intimidate.
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◾ Demonstrate confidence and do not allow challenges to cause you to doubt
the accuracy of your information.
◾ Do not allow the subject to think you are a decision maker.
◾ Do not make promises you cannot keep.
◾ Do not offer immunity.
◾ Demonstrate compassion, not arrogance.
Throughout, manage your tone and body language, remain firm and confident.
Demonstrate empathy and avoid any appearance of being judgmental. Look the
subject in the eye. Use body language that is sympathetic, but confident. Observe the body language and behavior of the interviewee. Move into his intimate space in order to communicate your compassion. However, do not touch him. Do not
pat his knee, put your hand on his shoulder, or touch his hands. Some interview methods call for this form of intimacy at this moment. DO NOT do it. Unwanted
touching may later be regarded as battery. Battery in many jurisdictions is considered both a crime and tort. To commit it exposes the interviewer to both prosecution and a lawsuit. DO NOT touch the interviewee.
During this entire exchange, the interviewer and his witness should be taking
notes. The date, start time, and the time of any breaks should be documented.
All notes should be neat and legible. They should be retained and become part of the permanent case file. Even if one’s notes are used to generate a report and then destroyed, the interviewer or fact finder could face the claim of spoliation. If your organization has a policy of not retaining investigative notes, change the policy.
Destroying one’s notes also creates the appearance that the interviewer/fact finder is hiding something. It also could give rise to the claim the interviewer is unprofessional and acted unethically. Here’s how.
Suppose the interviewee cooperated fully, made an admission, but did not pro-
vide a written statement regarding his guilt. After the interview, the interviewer prepares his final report and destroys his notes. Postdiscipline, the interviewee recants his admission and claims he’s innocent. He asserts the interviewer also thought he was innocent and was observed documenting it in his notes. He now demands the
interviewer produce his notes to prove it. Do you see the problem? Without his
notes, the interviewer has only his final report. Absent other circumstance (a witness for example), the matter is reduced to deciding who to believe, the accused or the unprofessional, paid fact finder.
4.2.5 Phase V: Discussion
Next, the interviewer needs to develop the admission. It sometimes can be difficult.
For example, most employees know that theft is a terminable offense. Most know
that to admit to it almost assures termination. So, instead, ease into it. Get the subject to identify the things he took without permission by offering a rationale for the behavior:
The Investigative Interview Method ◾ 113
◾ Taking office supplies is something everybody does. When was the last time you took some home?
◾ It is not uncommon, for employees to borrow things from work. One of the more common things we have learned that employees borrow around here is .
◾ What was the smallest thing you ever borrowed from work?
◾ Would I be truthful if I told management that the smallest thing you have ever taken without permission was a ?
Tip: Note that the interviewer did not use the word “theft” or “steal.” Instead, he uses terms such as “took without permission” or “borrow.” Words matter, so choose them carefully.
Depending on circumstances and the fact pattern of the case, the interviewer
should employ a variety of question types to develop additional information.
Examples include:
◾ Open-ended questions: Tell me what happened next?
◾ Closed-end questions: Exactly how many did you actually take?
◾ Expansion questions: You said you left the office at noon. Were you alone?
◾ Directive questions: Wouldn’t you agree with me that honesty is the best policy?
◾ Leading questions: Did you see him touch her and then remark about her blouse?
◾ Final questions: Is there anything else we should discuss?
Tip: Contrary to popular belief, leading questions are permissible. When used properly, they can expand the amount of information developed and sometimes take the interview in an entirely new and useful direction.
The interviewer also should seek the following information:
◾ Why did the subject do it?
◾ Was it his idea or was it suggested by someone else?
◾ What else did he do or say?
◾ Were there any witnesses?
◾ Who else was involved?
◾ Who else knows about it?
◾ Can the items taken be returned?
◾ Get the subject to name names.
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Note that once the subject has made his admission and provided all of the per-
tinent details surrounding his misconduct, he should be questioned regarding the misconduct of others. If he is knowledgeable of others and their transgressions, he should be thoroughly questioned about them. The interviewer should systematically document the who, what, when, where, how, and why regarding each indi-
vidual of whom the subject has knowledge. Use Appendix 5 to capture that which
you are told regarding others. This information can then be added to that already developed during the second phase of the investigation. In doing so, the investigative team can make real-time decisions regarding the interview of others and continue to build its information base.
Here are few questions the interviewer should always ask:
◾ Who else should we talk to (and why)?
◾ Who should we talk to next?
◾ Who else knows about this?
◾ How can you (we) prove that?
◾ Do you have any physical evidence (email, photos, images, notes, cards, gifts)?
◾ How might have we conducted a better investigation?
◾ Does your supervisor know about this?
◾ Who in management knows about this?
◾ Did management ever engage in this?
◾ How could we have learned about this sooner?
◾ Do you think it will happen again, and, if so, why?
Are here are a few questions the interviewer should never ask:
◾ Coercive questions: Would you be willing to cooperate in exchange for leniency?
◾ Intimidating/coercive questions: Would you rather tell the truth or go to jail?
◾ Inappropriate questions: Why didn’t you tell your wife you wanted to leave her?
◾ Ignorant questions: Do you think all people from behave that way?
◾ Stupid questions: Who do you think is going to win the game Sunday?
Once the interviewer is satisfied that he has obtained all the information he is able to get, he should move closer to the desk at which he and the interviewee are sitting. Confidently, he should ask the interviewee two more questions: Are you prepared to make a commitment that, as long as you work here, you will never
do these things again, and, if so, are you willing to put that commitment in writing? Revealing his written statement checklist (see Appendix 6, Written Statement Checklist), he will now walk the interviewee through it.
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4.2.6 Phase VI: Written
&n
bsp; Written statements play an important role in investigatory interviews. If the interviewer has been gentle and empathetic, most interviewees will not resist when asked to provide a written statement. Those that object should be asked why. In some
instances, the interviewee is afraid of how the statement will be used or if others, including co-workers, will see it. Avoid these difficulties by communicating a little encouragement. The tools I have used include saying things such as:
◾ While we cannot change the past, one can always alter the future.
◾ If you are sorry, you should be given the chance to say so.
◾ Putting your apology in writing will ensure that it is not misunderstood
or forgotten.
◾ Your statement will not be shared with your peers. Only the fact finders and decision makers will have access to it.
◾ Without a statement by you, the decision makers will be left with only the
results and my investigation and that which we discussed today.
◾ There is no better way to affirm that you have been honest today than to put the truth into writing.
In other instances, the subject may simply be unable to write. It is acceptable for the interviewer to write or prepare the statement for the subject if asked. Doing so does not diminish the value of the statement or its usefulness. Even statements that are written by the subject, but unsigned, are useful. Statements written or prepared by the interviewer and read by the subject, but unsigned are still useful. Even a statement torn up by the subject is useful and should be retained.
Tip: Casually display your written declaration checklist and preprinted statement form (Appendix 7) and ask the subject: “How’s your penmanship?”
For those of you who haven’t yet looked at Appendix 6, here are the elements that the interviewer should encourage the subject to include in his written statement: 1. A description of the precise nature of the misconduct.
2. Details of when, where, and last time the event in question occurred.
3. The known or observed misconduct of others.
4. The motive for subject’s actions.
5. The motive for the subject’s cooperation and participation in the interview.
6. An acknowledgement that subject understands that he violated company
policy and/or the law.
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