6.8 Final Thoughts
I thought this would be a good place to tie up a few loose ends. Not that I have skipped over anything or left something out, but instead offer some thoughts about dealing with those who simply will not offer an admission. My employees, inclusive of our trainees, who adhere to the investigative interview method and use the scripts I have provided you, yield admissions in over 90 percent of the investigative interviews they conduct. Because I will not be with you and hold your hand, your results might be different. Regardless, we (you and I) need tools to deal with the most challenging interviewees. Here are some of the best I can offer.
6.8.1 Providing the Interviewee a Reason to Be Truthful
Sometimes an interviewee simply needs a reason to be truthful. Indications of this are typically very obvious. He might ask, “Why should I tell you what happened?”
Process of Overcoming Objections and Denials ◾ 189
On other occasions, his desire for a reason will be far less obvious. Figure 6.10 is a good example. An experienced interviewer would instantly realize the interviewee has surrendered; however, he has yet found the words to communicate his admission. He is asking for reason to answer the question truthfully. Recognizing this, the interviewer should offer it. Here are few of the more common reasons to tell the truth:
◾ … Stop the shame
◾ … Stop the pain
◾ … Change the future
◾ … Stop living a lie
◾ … Start fresh
◾ … Start over
◾ … Get this fixed
◾ … Get it behind you once and for all
Using that which has already been discussed or shared during the interview, the interviewer with full appreciation for the facts of the case (called the fact pattern), would offer a reason best suited for the circumstances. Upon offering the reason to be truthful, I would immediately follow it with: “(insert the subject’s first name) would I be truthful if I told management you (insert offense, [i.e., took the cash]) and (insert rationalization, [i.e., but intended to return it as soon as you could]).”
Take a close look at this approach. I start with a reason to be truthful, described the offense, and then closed with a rationalization. But I posed the question asking him only to agree with me. I am not asking the interviewee to make an admission, I am only asking if I would be truthful.
Tip: 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.
6.8.2 Failure to Assign Guilt
I am going to close this chapter by sharing with you a tool I hope you never have to use. It is not a tool to obtain an admission from a reluctant interviewee or reveal something that he does not want to disclose (although, it is capable of doing so, as you will see). It is a tool to restore your confidence in your investigation’s findings and affirm for you that your subject is guilty of the offense in question. It is a tool to be used when your subject has emphatically and unequivocally stood on his
denial. So strong is the denial, that you begin to doubt your investigative results
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and yourself. I call the tool, the failure to assign guilt. Here is how to deploy it. At the point you are about to cave, ask this:
You said repeatedly that you had nothing to do with this. I think that is
untrue, but assume for a moment it is one of the others. Who then, out of
the three who had the combination, do you think did it?
A guilty person will almost always answer like this:
You know I have been thinking about that and for the life of me, I just
don’t know. I mean I know these guys. One has a family and the other just
sticks to himself. I don’t know. I would hate to guess; maybe you should ask somebody else.
Notice that while up to this moment the interviewee may have been very con-
vincing, I do not budge on my assertion that he is guilty. For his part, however, the subject is unable to accuse someone else. He knows just as I do that he is the only one with the motive and capacity to have committed the offense. Ah, you say, an innocent person not knowing the identity of the guilty would be very hesitant to implicate someone who is innocent as well. I agree. So, if necessary, I follow his response with a very similar question using the same technique:
Let me put it another way, though you have said repeatedly that you had
nothing to do with this, I still think that is untrue. But, assume for a
moment we identify the real person responsible. Given the circumstances as
you know them, what do you think is the appropriate punishment?
A guilty person will always answer with something similar to this:
You know I couldn’t really say. I mean, you’re the guy who did the
investigation. I’ve never worked in Human Resources. Geez, you’re the
guy that makes the big bucks around here. What do you think? Heck,
maybe if the guy could prove he never did it before, he should be given
a second chance.
Notice that again, I do not budge on my assertion that the subject is guilty.
However, now the subject is unable to assign punishment. He fears that whatever punishment he suggests, it might be the punishment he gets. Thus, he hedges, and makes a very phony suggestion that the offender be given a second chance. The
guilt of the subject could not be more evident. I would immediately follow this response with:
Process of Overcoming Objections and Denials ◾ 191
I agree; I think a second chance should be considered. (Insert the subject’s first name), would I be truthful if I told management you took the cash,
but intended to return it as soon as you could. You did intend to return the money, didn’t you?
I have yet to encounter a better tool to restore interviewer confidence and obtain an admission than this. But like I said, I hope you never have to use it.
6.9 Frequently Asked Questions
1. Do most people really tell the truth?
Yes. In our Western society truthfulness is still an important virtue. In other parts of the world this is not so, and the investigative interviewer should be aware of cultural differences when interviewing those outside Western society.
2. What is it about sociopaths that make them so dangerous?
Their failure to have a conscience. The absence of remorse and compassion for others is the hallmark of all serial killers and most terrorists. These animals stop only when they have been killed or confined.
3. Is it proper to offer the rationalization that the victim deserved the treatment they received from the accused?
Not in private sector investigations or the investigative interviews that accompany them. Though law enforcement sometimes uses this rationalization to obtain a confession, in the private sector its use is inappropriate and often unethical.
4. Speaking of ethics, it seems that the some of the techniques in this chapter are a little heavy-handed, possibly even unethical. Do those techniques cross the
line?
No. None of that which is offered in this chapter or anywhere else in this book is unethical. All of the techniques, methods, and scripts offered have been tested, chal enged, and used. All of them have withstood legal and ethical examination and have been proved to be acceptable. They are fair and appropriate when used properly.
5. In Chapter 4 you mentioned the use of truth-tellers. How can they be used to detect deception?
Truth-tellers are simple, nonincriminating questions. The best truth-tellers are 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. Lying causes physiological stress. If the interviewee lies the interviewer should expect his physical behavior, body language, and mannerism
s to be different than when truthful. The objective and subjective differences should be apparent to the interviewer and often are.
6. I have heard that the intensity profile of a denial when offered by an innocent person is different than that of someone who is guilty. Can you explain that?
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Yes. The intensity profile of a denial of an innocent person begins with a gentle and polite denial of guilt. As the interviewer continues to press, the intensity of the denial increases. The opposite profile is typically exhibited by those who are guilty.
This is because a guilty person knows that the more he talks the more difficult it is to sustain his innocence. He hasn’t the will to argue his innocence because he lacks conviction. On the other hand, the innocent argue their innocence with greater passion as time passes because their integrity is at stake. They want to be believed because they know what they are saying is true and become increasingly frustrated with the interviewer who isn’t listening to them.
7. Are false confessions a concern and how can they be avoided?
Yes. Every professional interviewer should have some concern regarding a false confession or admission. There has been much written on the topic and a substantial amount of case law has addressed the topic. However, because this book addresses the subject of interviewing in the private sector, confessions and false confessions are not a concern, per se. Investigative interviews are instruments of the private sector and by definition are, among other things, for the purpose of obtaining an admission. As I have mentioned at length throughout this book, a successful investigative interview (one yielding a proper admission) rests on the foundation of a good investigation. According to protocol, one should not undertake an investigative interview of anyone unless he knows the subject is guilty of the offense in question or has a very good reason to believe so. Thus, a false admission is nearly impossible. In my 30+ years, I have yet to encounter one or am I aware of one of my team producing one. That said, often I have encountered, no, make that witnessed, a disciplined employee who had freely made an admission against interest subsequently recant it. In roughly 10 percent of the 300 odd arbitrations I have participated in, the interviewee that had made a full written admission recanted it during his testimony at the hearing. Regrettably for him, however, he then had to explain why he had lied, during his interview or during his testimony. Regardless of his answer, his credibility was severely damaged and, in most cases, fatally.
8. Do you offering training on the topic of investigative interviewing and, if so, where can I learn more about it.
Yes. For more details, go to Convercent.com or email me at
[email protected]
Tip: The weakness of one’s denial is typically proportional to their guilt.
Process of Overcoming Objections and Denials ◾ 193
Endnotes
1. The people and events depicted in this case study are fictional. They and the behaviors described are composites of individuals and events examined by the author during one or more investigations he performed in this career. Any similarity to real people or actual events is purely coincidental.
2. Martha Stout, The Sociopath Next Door (New York: Three Rivers Press, 2006), 8.
3. Ibid.
4. The dynamic of rule-breaking and creative leadership was recently celebrated in Buckingham and Coffman’s bestselling book, First Break all the Rules: What the World’s Greatest Managers Do Differently (Simon & Schuster, 1999). A marketing piece for the book states, “[G]reat managers share one common trait: They do not hesitate to break virtually every rule held sacred by conventional wisdom. They do not believe that, with enough training, a person can achieve anything he sets his mind to. They do not try to help people overcome their weaknesses. They consistently disregard the golden rule. And, yes, they even play favorites” [emphasis added].
5. For a more detailed examination of fraud and fraud prevention, see my book:
Investigations in the Workplace, 2nd ed. (Boca Raton, FL: Taylor & Francis, 2012), 392–394 and 399–402.
6. Anthony Catanese, and A. W. Steiss are the authors of Systemic Planning: Theory and Application (Heath Lexington Books, 1970). Catanese is currently the president of the Florida Institute of Technology in Melbourne.
7. R. D. Hare, and P. Babiak, Snakes in Suits: When Psychopaths Go to Work (New York: HarperCollins Publishers , Inc., 2006), 24–28.
8. In philosophy and logic, the original liar’s paradox is the statement: “This sentence is false.” You will note that trying to assign to this statement a binary truth value leads to an irresolvable contradiction, thus making it the classic paradox.
9. John J. Fay, Encyclopedia of Security Management, 2nd ed. (Woburn, MA: Butterworth-Heinemann, 2007), 170–174.
10. Employee Polygraph Protection Act of 1988, 29 U.S.C.
11. The National Employer (San Francisco: Littler Mendelson, P.C., 2002), 730.
12. Ibid .
13. Online at: http://cvsa1.com/index.php (August 2002).
14. Employee Polygraph Protection Act, §§ 2001–2009.
15. Online at: http://en.wikipedia.org/wiki/Kinesics (accessed November 21, 2013).
16. Online at: http://www.dglennfoster.com/training#KIT
17. Online at: http://en.wikipedia.org/wiki/Statement_analysis (accessed November 22, 2013).
18. Ibid.
Chapter 7
Legal Challenges and
Litigation Avoidance
Key learning points:
1. Law is most easily defined as a system of standards and rules of human conduct that impose obligations and grant corresponding rights in which the rules
provide for the creation, modification, and enforcement of those standards.
2. From the onset, the fact finder and investigative interviewer must be thinking of one destination and one destination alone: the courtroom.
3. The first and foremost legal consideration when contemplating a workplace investigation is the right of privacy. That right extends to everyone the investigation touches, including the accused and accuser.
4. Workplace privacy rights when not statutorily protected nevertheless exist in the form of a “reasonable expectation of privacy.”
5. Investigatory interviews, while never custodial, can nevertheless give rise to claims of false imprisonment, assault, battery, and the infliction of emotional distress.
6.
In the private sector, the burden of proof necessary to discipline an employee, in most instances, is that of a good faith investigation and reasonable conclusion. However, the standards and burdens of proof for other actions shift and
vary depending upon the action and jurisdiction that action takes place.
“The truth is only theory until it is proved.”
E. F. Ferraro
195
196 ◾ Investigative Interviewing
7.1 Introduction
Given the nature and complexity of this chapter’s topic, I thought the reader
deserved some explanation regarding its enormity. While no single chapter, or book for that matter, could possibly cover all of the legal challenges facing fact finders or investigative interviewers in the private sector, this chapter is an attempt to cover that which the practitioner should have some command. Because of the litigiousness of today’s society, no one should undertake an internal investigation without some familiarity of the law. In order to achieve that, one needs knowledge. This chapter contains that knowledge and that which is necessary to navigate the legal minefields that lay before the modern fact finder and investigative interviewer. It is written to be used as a standalone treatise or a reference. Regardless, I encourage every reader to read it in its entirety before conducting their next investigative interview.
7.2 Jurisdiction over Workplace Investigations
Traditional private sector fact finders conduct investigations for their employers or contract for a fee to conduct investigations for oth
ers. The types of investigations conducted and the legal constraints upon private sector fact finders are often different from those of public sector investigators acting with police powers. Whereas public sector investigators are primarily concerned with violations of criminal codes, private sector investigators conduct a wider variety of workplace investigations, including internal, administrative, civil, and criminal investigations. These investigations fall under the jurisdictions of various federal and state courts and agencies, and there are a variety of evidentiary tests used in these different proceedings to determine the reasonableness of the investigative processes, the merits of the information gathered, and the justifications for adverse actions taken against employees based upon the investigative outcomes.
7.2.1 Origin and History of Law
One of the earliest known systems of law was the Code of Hammurabi, which was
established by King Hammurabi of ancient Babylon in about 2000 BCE. Later, the
Egyptians, Hebrews, Greeks, and Romans all established systems of governance
and law. Following the fall of Rome, Emperor Justinian of Constantinople carried on the Roman legal traditions and, in 528 CE, established the Justinian Code.
The Justinian Code is the foundation of today’s system of civil law for most of the civilized world. The most significant exception is English common law, which is the basis of our legal system today.
English common law was codified by King John of England upon his signing
of the Magna Carta in 1215 CE. The Magna Carta became the basis for most of
that contained in the first package of amendments to the U.S. Constitution, better
Legal Challenges and Litigation Avoidance ◾ 197
known as the U.S. Bill of Rights. The Bill of Rights includes 10 amendments. In summary they include:
1. Freedom of religion, speech, press, assembly and petition
2. Right to keep and bear arms
3. No quartering of soldiers in time of peace
Investigative Interviewing: Psychology, Method and Practice Page 29