hearing, touch, taste, or smell. With few exceptions, evidence that is opinion is not admissible. It is, in part, for this reason that reports should be factual and objective. Generally, witnesses may testify only to facts, not to their effect or result, or to their conclusions or opinions based on the facts. Accordingly, fact finder testimony should not contain opinions or conjecture. The rules of evidence, however, make two major exceptions. The first involves the lay (ordinary, nonexpert) witness and the second applies to the expert (specialist) witness.
5.5.1 Lay Witnesses
The lay witness may express an opinion on matters of common observation where
an opinion is the only logical way to convey the information. These opinions are permitted only concerning subjects for which the average person has considerable experience and knowledge. Some examples of matters of common observation, in
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which an opinion may be expressed by a lay witness, are physical properties, such as weight, size, approximate age, race, color, emotional state, physical state, and approximate speed of a vehicle.
5.5.2 Expert Witnesses
Expert witnesses may testify as to their opinion on evidence. An expert is a person skilled by means of education, training, and experience in some art, trade, or science to the extent that he or she possesses information not considered common knowledge among ordinary people. Expert testimony is not proof, but rather evidence
that can be accorded its own credibility and weight by the judge and any other
trier-of-fact. Expert witness testimony helps the trier-of-fact understand things that are not common knowledge or otherwise known only by experts in a particular art, trade, or science. An example might be testimony regarding the functioning of disk brakes in an automobile, how an airfoil produces lift, or the intricacies regarding how a proper investigative interview is conducted. Experts also write reports. Their reports are the basis of their testimony at trial. Thus, at trial, they may not offer opinions that were not expressed in their report.
5.5.3 Hearsay Rule
Hearsay can be considered a rumor or secondhand information. It is information
that has been told to a witness by someone else. Hearsay evidence is generally considered not admissible or competent, and applies to verbal statements and written material as well. Thus, an investigative report and the statements provided by interviewees are considered hearsay. Therefore, for these documents to be admissible, they must be entered into evidence (at trial) by way of a witness who is competent and credible. For our purposes, it is either the investigative interviewer or the subject. Remember, hearsay is anything that is not within the personal knowledge of the witness or interview.
There are several exceptions to the hearsay rule. One is the dying declaration.
A dying declaration is evidence resulting from an act or declaration made under a sense of impending death that relates to the declarant’s cause of death. In order to be admissible, the victim must have believed that he or she was dying, must, in fact, have subsequently died, and must have been competent at the time the
statement was made. Spontaneous declarations ( res gestae) are declarations that are spontaneous utterances or statements made in response to some sudden and shocking event, such as an accident or horrific crime. Testimony of a witness who heard the defendant exclaim, “My God, I shot him,” might qualify under this exception.
Another exception is former testimony. This is testimony given by a witness at a prior proceeding. This exception requires that the person who gave the prior testimony is unavailable.
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Additionally, the past recollection recorded exception is a memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to allow her to testify fully and accurately. Investigators referring to their notes is a good example of past recollection recorded. Business records that are created and maintained in the normal course of business can be exceptions as well. Examples include records of a telephone call, invoices, check registers, billing statements, and personnel files. The last exceptions are confessions and admissions. Fact finders may testify about a person’s confession or any admission made by another person—his interviewee, for example. Because confessions and admissions are acknowledgements of guilt, the presumption exists that it is not likely that a person would voluntarily confess unless guilty.
Investigators are often called into court or before other official bodies to present testimony, and juries are often influenced by their appearance and demeanor on the witness stand. Upon being notified of an impending court appearance, the investigator must ensure that the case is complete and a final report prepared. A pretrial conference with the attorney calling him as a witness is to prepare the investigator and organize the facts and evidence in the case. The investigator must provide the attorney with all reports and other relevant documents or exhibits in order for the attorney to assess the strengths and weaknesses of the case.
5.5.4 Presenting the Evidence
Before testifying, the fact finder should be aware of the probable line of questioning he will face and how all of the evidence he has gathered will be introduced and used at the trial. The fact finder’s appearance in court is an important component of his preparation.
How the jury will perceive the investigator’s credibility will be determined in part by her appearance, demeanor, and professionalism. To that end, John Dempsey recommends the following:1
◾ Know precisely when and where you will be testifying.
◾ Do not discuss anything about the case in public.
◾ Treat people with respect. Your professionalism, politeness, and courtesy will be noted and remembered.
◾ Do not discuss your personal life, official business, biases, prejudices, likes or dislikes, or any controversial subjects in a place that they can be overheard.
◾ Be on time.
◾ Dress and groom appropriately.
◾ Avoid contact with defense (opposing) counsel.
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5.5.4.1 Testifying
At trial, the fact finder will be subjected to direct examination by the attorney calling them, and cross examined by the opposing attorney. Direct examination
is the initial questioning of a witness (or defendant) by the attorney who is using the person’s testimony to further his case. Cross examination is questioning by the opposing attorney for the purpose of assessing the validity of the testimony. Some of Dempsey’s more useful advice for witnesses includes:
◾ Be prepared to be “sworn” or take an oath before testifying.
◾ Bring any notes or reports to the witness stand and refer to them when
necessary.
◾ Answer with a simple “yes” or “no” whenever possible.
◾ Hesitate before answering a question in order to permit an objection.
◾ Always ask that a question be repeated if it is not understood.
◾ Don’t offer opinions or make statements about a defendant’s character or
reputation.
◾ State only facts that he knows.
◾ Never fabricate, exaggerate, or speculate.
5.5.4.2 Dempsey’s Ten Commandments
of Courtroom Testimony2
1. Relax and be yourself
2. Answer only questions that are before you
3. Refer to your report only when allowed
4. Paint the crime scene just as it was
5. Be ready to explain why you are remembering details in court if they are not in your report
6. Avoid using jargon or unduly difficult language
7. Avoid sarcasm
8. Maintain your detachment
9. You don’t need to explain the law
10. Explanation of what you said is possible on rebuttal
5.5.4.3 Impeachment
At trial, a witness
that does not testify consistently, or alters his testimony from time to time and is contradictory, will not be credible. The opposing attorney will attempt to cast doubt on the witness’s credibility and discredit him. That process is known as impeachment. Several methods are used to impeach or attack the testimony and credibility of a witness. They include:
Administrative Interviews and Communicating Our Results ◾ 149
◾ Showing that the witness’s previous statements or conduct of the investiga-
tion are inconsistent with the witness’s testimony.
◾ Showing that the witness is biased or prejudiced for or against the defendant.
◾ Attacking the witness’s character by revealing prior criminal convictions or other irrefutable characteristics.
◾ Showing the witness’s capacity to observe, recollect, or recount due to mental weakness, a physical defect, or influence of drugs or alcohol.
◾ Showing that the witness is in error; that the facts are other than as testified.
Tip: The best testimony is accurate, truthful, and in accordance with the facts.
5.6 Frequently Asked Questions
In anticipation that you may have some questions, allow me to answer some of the more frequent ones I ask during my investigative interview trainings.
1. Ought an organization have an investigations policy?
Yes. Investigations policies are becoming more common. However, by their very nature, policies tend to be rigid and inflexible. Better than a policy is to have an investigations protocol. The protocol should detail when, how, and for what purpose internal investigations should be conducted and by whom. The protocol also should contain similar guidance relative to the interviews pursuant to those investigations. Those that I build for our customers include forms, checklists, and other tools that both the fact finder and the interviewer might use for their projects. Investigation and interview protocols should not contain words such as: shall, always, or never. These words are too restrictive and diminish the fact finder’s ability to adjust and improvise when necessary. At the same time, the document should not be so fuzzy that it is effectively useless.
2. Should the interviewee be allowed to take notes or record the interview?
“Yes” to the question of notetaking and “no” to the question of recording. It would appear unfair and suspicious not to allow the interviewee to take notes while the interviewer did so. I always allow it and so should you. It is permissible to ask the interviewee for a copy of his notes; however, if you do, you can be assured he will ask for copies of yours. As mentioned in Chapter 4, I do not recommend anyone other than professional interviewers to record their interviews.
The effort involves too many technical and legal complexities that it is not worth the few benefits it provides. If one is to follow my processes for investigative and administrative interviews, electronically recording your interviews will not be necessary.
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3. How should one respond if the interviewee asks to see the interviewer’s notes?
Show them to the interviewee, but do not put them in his hands. Do not allow the interviewee to handle any original documents. Doing so creates the risk that the interviewee not return them. It has happened to me. In one memorable instance, an interviewee, who had admitted to an immense fraud, asked to see the “smok-ing gun.” Without thinking, I handed him the document. He said, “Yep, that’s it,” and proceeded to shred it and stuff in his underwear. He then summarily concluded our interview and walked out. I should have been fired for the mistake.
Don’t commit the same one yourself.
4. How should the interviewer handle questions regarding his use of one or
more of the investigative methods?
After explaining the methods of investigation, it is not uncommon for the interviewee to ask questions such as: “Do you have photographs of me?” or “Did you search my email account and find evidence?” These questions should be answered with a pat answer. Here’s mine: “I am sorry, but given the nature of the issue and the expectation of privacy of those involved, I cannot answer that question at this time. Upon the completion of our investigation you are welcome to submit a written request to examine any evidence we have gathered or ultimately used. Right now I must fulfill my commitment to those who have cooperated and provided
us assistance and not disclose their identity.” The caveat, of course, is that this, in fact, is true and one or more individuals cooperated or assisted me. But, as we will learn in the next chapter, this type of question when posed to the interviewer is what we call a tacit admission . Most reasonably intelligent people who are innocent do not ask to see evidence implicating them in an alleged offense—because they know none exists. For them, the question is rhetorical and absurd and, as such, it is rarely asked by innocent people. I have gone so far as to tell this to an interviewee. The response I get is usually, “Really?” Their head then drops and they mumble something to the effect: “If I did, it was a mistake.” This is also a tacit admission. When given this reply, the interviewer should immediately respond with the question: “Was it a mistake, or did you do it intentionally?”
5. How should the interviewer respond if an administrative interviewee sud-
denly admits to wrongdoing of some sort?
The interviewer should casually acknowledge the admission and suggest that before going into it, the interviewee take the interviewer back in time and share what led up to the offense. This approach does two things. First, it does not alert the interviewee that they have suddenly revealed something that was previously unknown. Second, it gives the interviewee the opportunity to rationalize the transgression. By inviting them to go back in time and provide background, the interviewee is able to provide context and justification for his behavior. This technique is disarming and allows the interviewer to collect his thoughts and consider next steps.
6. Should the interviewee’s written statement be included in the fact finder’s
final report?
Administrative Interviews and Communicating Our Results ◾ 151
Yes. Written statements, interview, and witness notes and addenda are evidence and most likely relevant to the matter in question. As such, like all other relevant evidence, copies should be included in the fact finder’s final report.
Tip: A written statement is useless until it is necessary to use it.
Endnotes
1. John S. Dempsey, Introduction to Investigations, 2nd ed. (Farmington Hills, MI: Cengage Learning, 2002).
2. Ibid.
Chapter 6
Deception Detection
and the Process of
Overcoming Objections
and Denials
Key learning points:
1.
Because some interviewees are, in fact, smarter than others, the professional
investigative interviewers should never, ever underestimate the cognitive abil-
ities of those they interview.
2.
People lie because they believe that lying provides more benefits than telling
the truth. The interviewer needs to appeal to the interviewee on the con-
science and subconscious level and convince them that telling the truth is
more beneficial than lying.
3.
The use of rationalization or projection is a means by which the subject
attempts to make their behavior understandable and socially acceptable.
Assisting the interviewee find a suitable rationalization or project blame on
someone else is often critical in obtaining an admission.
4.
Contrary to the myth, those who commit workplace violence don’t simply
snap without warning. Abundant research has shown that aggressors tend
to exhibit inappropriate and disruptive behavior prior to committing an act
of violence.
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1
54 ◾ Investigative Interviewing
5.
Exceptional interviewers are as aware of their body language as they are aware
of their interviewee’s.
6.
The best fact finders are active listeners who use both verbal and nonverbal
means to show the interviewee they are listening and that what they have to
say is important.
7. Lying is learned while honesty is earned.
“The question: What will happen if I tell the truth, is an admission disguised as a lie and the answer: If I did it, it was a mistake, is a lie disguised as an admission.”
E. F. Ferraro
6.1 Introduction
Some students are smarter than others. During a recent two-day advanced
interviewer training course, my co-instructor engaged one of the students in an attempt to demonstrate the use of questions to determine the cognitive skills of an interviewee. The instructor requested a volunteer and invited him to the front of the class and to sit with him at a table staged for an interview. Once seated, the instructor told the student, “I will ask you a question and if you don’t know the answer, you pay me $5. Then you ask me one, and if I don’t know the answer, I
will pay you $500.” With the class cheering him on, the student eagerly accepts the challenge.
The instructor smiles and asks the first question. “What’s the distance from the Earth to the Moon?” The student squirms in his seat and tugs his ear. Without saying a word, he reaches into his pocket, pulls out a $5 bill and hands it to the instructor. Rooting for their classmate, several in the class offer mock boos and toss jeers at the instructor. Now it’s the student’s turn. He collects himself and confidently leans back into his chair. In proper interviewer style (notepad at the ready, pen in hand), he asks, “What goes up a hill on three legs and comes down on four?”
This time the instructor squirms. Rubbing his forehead, crossing his arms, then gazing up as if the answer was somehow written on the ceiling, he tells the student he doesn’t know the answer. He digs five crisp Franklins from his pocket and begrudgingly hands them to the student. As he does and with complete loss of any semblance of professionalism, he snaps, “Well, smarty-pants, so what goes up a hill on three legs and comes down on four?” Without saying a word, the still smiling student hands the instructor another $5 bill and leaps from his chair with clenched fists thrust high over his head. The class goes nuts. With high fives and laughter everywhere, we broke and took a well-earned 15-minute break.
Investigative Interviewing: Psychology, Method and Practice Page 24