7. An acknowledgement that the subject understands that because of his actions
he may be disciplined or discharged (or prosecuted, if applicable).
8. Document why the subject has decided to be honest knowing the possibility
of discipline (or prosecution).
9. The subject’s opportunity to add anything to the statement in his own words.
10. An affirmation as to the truthfulness of the statement and the reliability of its contents.
In the event the subject is completely opposed to a written statement in any
form, the interviewer should prepare an addendum. An addendum is a statement prepared by the interviewer (or any fact finder, for that matter) detailing a particular occurrence or event. This underused tool is particularly suitable for investigative interviews in situations where a written statement cannot be obtained from the subject. It permits the contemporaneous capture of information not possible by other means. What’s more, addenda can be used as admissible evidence. For
example, suppose the interview begins very cordially, the subject readily makes an admission, and then suddenly has a change of heart. He becomes belligerent and
even abusive. Before the interview has been completed, the interviewee summarily leaves the interview and walks off the job. The interviewer would document this in detail. It would include all of the information the decision makers would need to appreciate what took place, what was said, and who said it.
Tip: If the subject refuses to provide a written statement, offer to prepare one for him. If that is refused, the interviewer can prepare an addendum and document what took place and the subject’s admission if provided.
As noted, the last list item to be included in the written statement is any comment or added information the subject wishes to incorporate. This is the best place for the subject to offer an apology or say he is sorry. Here are a few more tips:
◾ Do not allow the subject to offer a conditional apology. ( If given a second chance, I promise never to again. )
◾ Take each page of the statement from the subject as he completes it.
◾ Return the statement one page at a time for the subject to sign.
◾ When finished, make three copies and put the original in a secure place.
◾ Obtain permission from the decision makers before providing the subject a
copy of his written statement.
Once the statement is signed by the interviewee, both the interviewer and the
witness should sign it. Once everyone present has signed each page the interviewer and the witness should politely excuse themselves, telling the interviewee that they
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are going to take a break and, when they return, they will be accompanied by the individual who introduced them at the beginning of the process or someone else
in a decision making capacity. If not done so previously, it is appropriate to allow the interviewee to take a break or use the restroom if necessary. He should be
instructed that should he leave the interview room, he is not to return to his work area and must return immediately once he has used the restroom. He should be told as well that, if he runs into someone outside the interview room, he is not to discuss the interview or reveal that an investigation is underway.
4.2.7 Phase VII: Oral
The oral portion of the interview involves a management representative or a decision maker, if available. That person will now participate in the interview in a scripted and concise manner. Begin this phase by providing a copy of the interviewee’s statement to the management representative. Share with her the subject’s level of cooperation, remorsefulness, and that which she admitted. Ensure the management representative also has a copy of Appendix 4. At the bottom of that document are instructions that must be followed. Things to consider before the interview resumes include:
◾ Is the management representative properly briefed and does she know her script?
◾ Is there enough seating for everyone in the interview room?
◾ Does the subject know the management representative and, if so, what is
their relationship?
◾ Are there any problems that should be anticipated?
I frequently use this opportunity to digitally record this portion of the interview and attempt to have the interviewee repeat his admission so that it may be recorded. This enables me to capture the mood and tone of the interview and
eliminate a future claim that the admission was made under duress or obtained
improperly.
Trap: Recording any portion of an interview has its risks. Interviewers should not record their interviews unless they have been properly trained and have the requisite experience to do it properly. As such, the practice of recording this or any other portion of the interview should be very carefully examined before deciding to do so. A bad recording is worse than no recording at all.
Again, using a preprepared checklist (see Appendix 8—the Oral Statement
Checklist), I attempt to engage both the interviewee and the decision maker. Here are some of the more critical items on my checklist:
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1. Have everyone else present identify his or herself by name, position, and employer.
2. Establish that the subject understands English and is aware that he or she is being recorded.
3. Establish that the subject understands why he has been investigated and/or
being interviewed.
4. Establish that the subject was treated fairly.
5. Establish that the interviewer is an information gatherer not a police officer.
6. Establish that the subject was not imprisoned and that he could leave at any time.
7. Establish whether the subject requested a representative.
8. Establish that subject was not denied use of the telephone, food, drink, or
the restroom.
9. Establish why the subject did/did not want representation.
10. Review the methods of investigation that could have been used and that one
or more of them were used to gather information about the subject.
11. Establish that subject agreed to two conditions in order to participate in the interview and ask that he repeat them.
12. Establish that the interviewer is only an information gatherer, not a deci-
sion maker.
13. Establish that no threats or promises were made.
14. Establish possibility of termination and/or prosecution or other action as
appropriate.
15. Establish that the subject understands that his cooperation did not (or does) guarantee favorable treatment or continued employment.
16. Establish why the subject has been honest.
17. Have the subject identify his signature on his written statement and then read the statement to the management representative.
18. Review information provided by the subject regarding others.
19. Allow the decision maker to ask questions.
20. Allow the subject to ask any questions or add anything to his or her statement that he wishes.
21. If the interview goes beyond a reasonable length of time, state why.
22. Ask the subject not to discuss the investigation or his interview with others that may be involved.
23. Ask the subject if everything he has just stated in the presence of the management representative is true and correct.
24. Establish date and time, and that the recorder (if used) was not turned off during the recorded portion of the interview (or, if it was, why).
25. Offer the subject the last word.
My questions are asked so as to allow the subject to answer without a simple yes or no response. I attempt to obtain as much dialogue between me and the subject as possible. I want the management representative (or listener, if it has been recorded)
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rview Method ◾ 119
to have a very good appreciation for the atmosphere in which my interview took
place. Here are a few more tips:
◾ Ask that the subject direct his answers to the management representative
instead of you or the witness.
◾ Pay close attention to the subject’s answers to the questions on your check-
list. If answered incorrectly or inconsistently, politely correct him or ask for an explanation.
◾ Help the subject with the answers to your questions, but do not spoon-feed him.
◾ When asking the subject to read his written statement to the management
representative, provide him only a copy, not the original. Read along with
him to ensure he reads what is written and does not ad-lib.
Tip: If a witness is present, in the presence of the management representative ask if they have any questions or have something to add. Know in advance if they intend to ask or add something. During this critical portion of the interview, the last thing the interviewer wants is surprises.
4.2.8 Phase VIII: Conclusion
Following the oral phase, arrangements are made to have the decision maker place the interviewee on administrative leave. Instead of deciding discipline on the
spot, the decision maker is permitted time to analyze what was said by the interviewee and the totality of the information gathered during the entire investigation.
Additionally, other interviews may be necessary. Those interviews may produce
additional information regarding the subject and may impact any disciplinary decisions. Delaying the decision to discipline also allows the employer the opportunity to examine all of the evidence and make fairer, less disparate decisions. Postponing the disbursement of disciplinary action following the completion of the entire
investigation also allows the employer time to prepare final checks, draft discharge notices, and make the appropriate internal disclosures.
Conclude your process by:
◾ completing all of the items on your oral statement checklist
◾ providing the subject your contact information and final instructions
◾ arranging to obtain the subject’s personal effects (keys, jacket, purse, etc.) so that he may go home
◾ not allowing the subject to return to his work area
◾ disabling access card, codes, passwords, and, if appropriate, collect any organization items
◾ arranging for the subject to safely leave the premises
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Tip: Ensure the subject leaves the premises by having someone watch him. If stolen property is to be returned, arrange for delivery of it away from the workplace.
4.3 Summary
There are few skills more important to the modern fact finder than the ability to obtain information through effective interviewing. However, many methodologists offer methods and techniques that are not appropriate for use in the private sector.
Their style is accusatory and harsh; it assumes guilt and is largely contradictory to the best practices used by those outside law enforcement.
Investigatory interviews are different. They are always noncustodial, voluntary, and nonconfrontational. The interviewer always treats the interviewee with respect and dignity. However, interviews nonetheless are complex and fraught with unseen liability and risk. Like their law enforcement counterpart, they are psychologically demanding and require a high level of mental concentration. However, they also
require more planning and preparation and typically culminate the fact finding and information gathering phase of most workplace investigations. They are conducted for the purpose of learning the truth and obtaining an admission. An admission
is a simple statement of guilt. For disciplinary purposes, an employer needs 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. Therefore, a properly obtained admission from the offender meets the employer’s burden of proof. The
Investigative Interview Method (I2M), as described in this chapter, was developed to meet this need. However, most critically, and unlike law enforcement’s interrogations, 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. Coercion, intimidation, and psychological abuse are never used by the investigative interviewer.
Is summary, when used properly, I2M has several distinct benefits over other
methods. They include:
◾ A nonaccusatory approach
◾ No use of intimidation or coercion
◾ A highly structured and process-driven technique
◾ An easily learned and replicated methodology
◾ Consistent results with admission rates typically exceeding 90 percent
◾ Significant reduction in the likelihood of false confessions
◾ Results that are court admissible
◾ A time-tested and proven process
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4.4 Frequently Asked Questions
If you did not before, you now realize that successful investigative interviews are complicated. In spite of our best intentions and the amount of process we impose on our effort, investigative interviews sometimes encounter wrinkles. I will cover the most complex of them in Chapters 6 and 7. In those chapters, we will examine deception detection and how to deal with objections and denials as well as many of the legal issues and challenges associated with conducting investigative interviews in the workplace. For now, let’s attempt to answer a few questions you likely have and smooth out a few of those wrinkles.
1. When should the interviewee be notified of his intended interview?
This is a common question and it is surprising how few answer it correctly. The interviewee or subject, if you may, should not be told of his pending interview until he meets the interviewer. Without the element of surprise, the interviewee is able to:
a. Prepare for the questions he will likely be asked
b. Destroy or alter evidence
c. Intimidate or hurt witnesses or themselves
d. Flee
e. Engage in acts of vandalism or sabotage
f. Warn accomplices
g. Notify the press and others eager to damage the reputation of the organization
h. Get a lawyer
i. And, given enough time, initiate preemptive litigation
I have had cases in which my customer insisted the subject be told of his interview in advance. In some cases, it was debated as to whether the subject be given as much as a month’s notice. The reason for this inanity was usually something to do with culture or employee expectations. If these are the reasons your decision makers insist your subject should be tipped off, ask them if the subject extended the same courtesy to them before he plotted and committed his crimes against his victims. If you agree to prenotification of your subject, also be sure to ask them to provide you a Kevlar vest—you might need it.
The other common reason for early notification of the interviewee is scheduling.
While it is often a challenge, organizational decision makers need to manipulate and manage the schedule of the subject without tipping him off. In doing this, obvious and inappropriate deceptions should not be used. Do nothing that will allow the interviewee to later claim he was deceived and, thus, justify his refusal to cooperate in the interview. Use your imagination and be careful.
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2. When should others be notified?
This question goes to when we notify the subject’s supervisor, manager, the legal department, or parties outside of the organization that the subject will be interviewed. Regarding the interviewee’s supervisor, I offer the same reasoning as stated above. I also would add to my list of concerns the possibility that the supervisor knows of or has
involvement in the problem. That is the reason we have the management representative introduce the interviewee to the interviewer, not his supervisor (see section 4.2.2 above). Regarding notification of the other parties, the decision should be made based on:
a. Organizational needs
b. Past practices, precedents, and existing policies
c. The requirement to do so according to governing regulations and law
It is helpful to remember that the more people who know that employees will be interviewed pursuant to an internal investigation, the greater the likelihood of it being compromised. I always suggest that my customers err on the side of caution and involve as few people as possible.
3. Is it permissible to interview those who are not employees?
It is permissible to interview nonemployees. How and when to interview them wil be largely determined by the facts of the case and circumstances. Contractors are the most common nonemployee interviewees, though vendors and customers are
sometimes interviewed as wel . Unless contractual y obligated, the fact finder does not need the permission of the contractor to interview his employees. Past practices and precedent aside and unless absolutely necessary, neither the contractor nor his employees should be notified prior to an investigative interview. To do otherwise invites unnecessary complications and problems. Here are a few of them. The contractor:
a. May refuse to make the employee available
b. May insist he or his attorney participate
c. Might insist to see the evidence before cooperating further
d. Might notify government regulators, law enforcement, or the press
e. Might destroy evidence, intimidate witnesses, or fire the subject
Unless absolutely necessary, do not notify the contractor of your intention to interview one of his employees. Similar caution should be used when deciding to interview customers and vendors. Often these situations pose a public relations problem, not a tactical one. Think it through, exercise caution, and prepare for the unexpected.
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