Commw. 1989).
147. Conseco v. Review Board of Indiana Dept. of Employment and Training Services, 626 N.E.
2d 559 (Ind. App. 1993).
148. Combined Insurance Company of America v. Workers’ Compensation Appeal Board, 754
A.2d 59 (Pa. Commw. 2000).
149. Anthony v. Workers’ Compensation Appeal Board, 823 A.2d 1046 (Pa. Commw. 2003).
150. Restatement (Second) of Torts §652D. Comment (a).
151. Restatement (Second) of Torts §652E.
152. Bine, supra at 66.
153. Garcia v. Aerotherm Corp. , 202 F.3d 281, 1999 WL 1244486 (10th Cir. (N.M.))
[Unpublished].
154. Stock v. Wisconsin Electric Power Company, No. 93-0522, Court of Appeals of Wisconsin, March 9, 1994.
155. Szot v. Allstate Ins. Co. , 161 F.Supp.2d 596 (D.Md., 2001).
Chapter 8
The Future of
Investigative Interviewing
Key learning points:
1. Investigations of all types will remain important well into the foreseeable future.
2. Those who conduct investigations will need greater legal and technological skil s.
3. The safeguarding of the rights of suspected wrongdoers will grow in importance.
4. The public’s preoccupation with privacy and its desire to protect it will birth new legislation and regulation.
5. The triers-of-fact, regardless of stripe, will increase their demand for higher quality investigations and better proof emanating from them.
“Inconvenient facts are always the most valuable.”
E. F. Ferraro
8.1 Introduction
At those occasional casual settings, where my colleagues and I have a chance to congregate and relax together, the future of internal investigations and the importance of investigative interviewing is often debated. I find it interesting that those who don’t use or have never conducted an internal investigation hold some of the strongest opinions. They support their claims or positions merely on what they
think they know. Frustratingly, many lawmakers legislate in a similar manner.
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Instead, my frame of reference is experience. While admittedly not all of it has been good, all of it was educational. That education leads me to believe that internal investigations and the investigative interviews that accompany them are here to stay. They are viable and effective tools. Specifically, investigative interviews enable the gathering of information not possible by any other means. Most importantly, investigative interviews are one of the few forms of investigation that is interactive.
It not only permits one to learn what is going on, but why it is going on. Other than undercover, no other form of investigation is as revealing. So, while the other methods of investigation may come into and fall out of favor over time, I believe that investigative interviewing will remain the fact finder’s most effective investigative tool in the private sector.
As stated in the first chapter, an investigation is best defined as the logical collection of information through inquiry and examination for the purpose of gath-
ering reliable evidence in order to solve a problem. The problems investigations typically solve vary in complexity and magnitude. Regardless of their purpose, all proper investigations must have legitimate objectives, appear fair and impartial, and be conducted within the boundaries of the law. For today’s ethical organization operating in the free, industrialized world, these fundamentals have changed little in the past 100 years. What has changed are the expectations of the benefactors of the modern internal investigation and those of the trier-of-fact. Modernity has raised the bar and there is no indication that the future will lower it.
Long gone are the days of the seedy private detective, agenda-driven HR man-
ager, or heavy-handed audit team. Today’s fact finders are almost exclusively an educated, disciplined, and professional class. Unarguably, command of current
civil and employment law, a strong appreciation for civil rights and privacy, and a solid grasp of modern technology and science are essential attributes of the modern investigator. Recent history has shown that those who have been unable to adapt soon become obsolete. The future will be more of the same.
Foregoing an empirical analysis, a quick look at legislation and case law over the past two decades suggests the modern fact finder ought to conclude:
1. Investigations of all types will remain important well into the foreseeable future.
2. Those who conduct investigations will need greater legal and technological skil s.
3. The safeguarding of the rights of suspected wrongdoers will grow in importance.
4. The public’s preoccupation with privacy and its desire to protect it will birth new legislation and regulation.
5. The triers-of-fact, regardless of stripe, will increase their demand for higher quality investigations and more compelling proof emanating from them.
Predictably, these conclusions foretell the future. And, when collectively considered, it is reasonable to expect that the net effect will be more structured, technical investigations and the requirement for far more resources to conduct them. Simply
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put, investigations of the future will be more demanding and more expensive. Let’s take a closer look and examine each of these elements.
8.2 Criticality
Private sector investigations of all types will remain important well into the foreseeable future. Because investigations serve a useful purpose and have become such an integral component of so many modern processes, it is unlikely that they will soon become obsolete. What’s more, the civil and criminal legal systems of all of the free, industrialized nations rely upon fair, impartial, and professional investigations in order to properly function. Without an alternative means to gather facts, collect evidence, and solve crimes and other problems, modern societies depend on reliable and proper investigations at many levels. The absence of an effective method of fact finding and interviewing, for whatever purpose, is almost unimaginable. That said, internal investigations and the methods by which they are conducted will
continue to evolve. The future will likely see all credible societies expand their use and increasingly benefit from them.
8.3 Skills
Those who conduct private sector investigations will need greater legal and technological skills. The societies of free nations understand and respect the rule of law.
The laws of the land codify a society’s rules of conduct and establish the boundaries of acceptable behavior. As societies evolve, so do their laws. In the United States, for example, we have seen the acceptance of slavery followed by its abolishment by proclamation and constitutional amendment. Years later, discrimination was
outlawed with the enactment of the Civil Rights Act of 1964. Continuously since 1964, we have seen additional federal and state legislation protecting the rights of individuals and a plethora of case law interpreting that legislation. By design, law evolves. It is permitted to change as the needs of society change. Therefore, it is reasonable to expect this evolutionary process to continue and that the investigator of the future will need to augment his understanding and appreciation of the law as it changes. However, over time, the law will become more complex. There will be more rules, regulations, and case law to consider. The fact finder of the future will need to know more law and better understand that which applies to him.
Similarly, technology evolves. For several decades, technology has played an
increasing role in the conduct of investigations. As a result, internal investigations and the investigative interviews that accompany them also have become more
structured and complex. Even the types of things investigated have changed. It
is sadly expected that new technologies are exploited almost as quickly as they are invented. To a large degree, the
crimes of today rely increasingly on technology. As
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such, it is reasonable to conclude that the investigations of the future will also rely increasingly on technology. It is reasonable to expect tomorrow’s fact finders and interviewers to use technology for more predictive modeling; link analysis, data mining, rules-based crime detection, computer forensics, and, of course, Big Data.
The fact finders of the future will be legal minded and technologically savvy.
8.4 Protecting the Rights of Others
The safeguarding of the rights of suspected wrongdoers will grow in importance.
Consistent with the evolution of law is the expansion of the protections afforded suspected wrongdoers. A cursory review of the state and federal legislation and case law of the past 10 years fails to yield a single instance where the rights of the accused have shrunken (some would argue, Hamdi v. Rumsfeld to be a vivid acceptation).1
Over the years, we have witnessed the birthing of Miranda, Garrity, and Weingarten. These landmark decisions have altered the way fact finders conduct investigative interviews and interrogations, and, to a significant degree, how they engineer their fact finding. Additionally, we have witnessed more judicial sympathy for claims of defamation, discrimination, coercion, intimidation, and false imprisonment. There is nothing foreseeable to suggest that the direction of this trend will change. The trend, however, has given rise to a curious anomaly—America’s apparent tendency to accept the erosion of individual property, free speech, and gun ownership rights, while seeming to favor the expansion of rights for those accused of serious wrongdoing.
At the expense of appearing to politicize the topic, it seems clear that we are witnessing a cultural shift in morals and values. Among the most disturbing is the growing sense that accepting personal responsibility and respect for the rule of law are choices. Consistent with this mindset is the proposition that those accused of wrongdoing deserve more legal protections—protections that often seem to be
rendered at the expense of the victim. Given this tendency, fact finders of the future should fully expect that protecting the rights of those that they investigate will grow in importance.
8.5 Privacy
The public’s preoccupation with privacy and its desire to protect it will birth new legislation and regulation. It is no secret that the concept of privacy and the necessity to protect it have become a public preoccupation. What’s more, the issue of privacy is the perfect political football. Lawmakers of late have recognized that everyone can be made afraid of intrusions into their privacy. Regardless of age, race, color, or religion, everyone can be a victim who needs protection. This absurd conclusion has precipitated a legislative arms race in which lawmakers hastily craft
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one privacy bill after another in an attempt to out-protect one another’s constituents. The result has created a tangled web of contradicting laws and regulations, each with its own set of unintended consequences. The U.S. Fair Credit Reporting Act (FCRA) is a perfect example. Originally signed into law in 1970, it has since been amended 20 times. Today, the FCRA has more to do with employment background screening than credit reporting and has long lost sight of its original intentions. While it covers approximately 330 million American consumers and over 150
million American workers, one would be hard pressed to fill a modest conference room with consumers who would assert its privacy protections are useful.
Elsewhere, we have witnessed bill after bill intending to restrict the use of Social Security Numbers, names, addresses, and all manner of public records in the name of privacy protection. The effect has reduced the public’s access to public record information and made it more difficult to find criminals. The trend is as dangerous as it is irrational. No society can be free, if information is not accessible and criminals are allowed to hide behind a shield of privacy. Given the tenor of today’s politics and our preoccupation with the make-believe threat to our privacy, the future will hold more of the same for future fact finders. As such, their work will be more difficult and less productive.
8.6 Higher Standards and More Proof
The triers-of-fact, regardless of stripe, will increase their demand for higher quality investigations and better proof emanating from them. Judges, juries, arbi-
trators, and administrative law judges of the future will demand higher quality investigations and better proof from the fact finders that come before them.
Ironically, it was the Rodney King incident in Los Angeles, California, in 1991
that changed everything.2
Because the King incident (and several other instances similar to it) was so
vividly recorded on video, both the triers-of-fact and the public came to assume all acts of injustice and crime could and should be video recorded. This assumption has created a significant legal dilemma. In another high-profile case, the fate of O.
J. Simpson was divined by the absence of any video evidence, in spite of the overwhelming evidence against him.3 For almost two decades the trend has continued.
Not only have triers-of-fact demanded better quality evidence, they have demanded better quality investigations.4 This is not a bad trend. Any reasonable person who might be the subject of a formal investigation, criminal or otherwise, would hope that the investigation surrounding him or her be proper and professional, and that any evidence gathered would be real and reliable. For reasons similar to those stated earlier, this trend is unlikely to reverse. If anything, the interest in better investigations and better proof should only increase over time.
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8.7 Summary
Today’s fact finders are educated, disciplined, and professional. Most possess a strong command of current civil and criminal law, and a solid appreciation for
the civil rights and privacy of those they investigate and interview. Tomorrow’s fact finders will possess more of the same skills. Additionally, the investigators of the future will need a solid grasp of modern technology and science in order to be successful. When all is considered, it is reasonable to expect that the investigations they conduct will be more structured and will require far more resources in order to conduct them. With little doubt, investigations of the future will be more demanding and significantly more expensive.
Endnotes
1.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an “illegal enemy combatant.” The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
2. Rodney Glen King was an African American who, on March 3, 1991, was the victim of apparent excessive force committed by Los Angeles police officers following a high-speed chase and traffic stop. A bystander, George Holliday, videotaped much of the incident from a distance. Holliday’s footage showed LAPD officers repeatedly strik-ing King with their batons. A portion of the footage was later aired by news agencies around the world, causing public outrage that raised tensions between L.A.’s black community and the LAPD. The acquittals of the officers involved sparked the 1992
Los Angeles riots.
3. See Jeffrey Toobin’s, The Run of His Life: The People v. O. J. Simpson (Random House, 1997).
4. Ibid.
Chapter 9
Improving Results
Key learning points:
1.
A successful workplace investigation requires the investment of time, money,
and patience.
2.
All investigative efforts should be measured. Without some form of measure-
ment, analysis, or critical review of the investigative effort, neither process improvement nor best practices devel
opment is possible.
3.
A cooperative and remorseful interview is a perfect candidate to provide use-
ful information and input about process and process failures.
4.
Before undertaking any investigation, the fact finder must ask: Is the investi-
gation necessary and is there a suitable alternative?
5.
It is the responsibility of every employer to foster a safe and productive workplace. Workplace investigations and the investigative interviews that accom-
pany them are essential tools that enable us to make that possible.
“All good fact finders know there is no such thing as coincidence.”
E. F. Ferraro
9.1 Investment and Cost Management
A successful workplace investigation requires the investment of time, money, and patience. In addition to all of the other prerequisites, these three elements must be available in ample quantities if the investigation is to be a success. The size, scope, 289
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and nature of the problem will determine the amount the employer must invest.
There is no formula. One thing is certain, the bigger the problem, the bigger the investment. However, employers can manage their investment in many ways. The
experienced employer knows that the issue, which precipitated the investigation initially, is often not the only problem. Frequently, the initial problem is only the tip of the iceberg. Beneath the surface may loom other issues and problems, which may be significantly more serious. The best example is vandalism.
Over the years, I have been asked to conduct hundreds of investigations into
apparent vandalism in the workplace. Frequently targeted were the vehicles and
property of employees. For years, I handled these matters as routine investigations.
And, while I contemplated motive to assist me in identifying a suspect pool, I
rarely thought beyond it. Today, I know better. I know now that the vandalism of personal property does not occur in a vacuum. In fact, vandalism is frequently a critical component of a far greater problem—workplace violence. Workplace violence erupts after a progression of ever-increasing inappropriate behaviors is left unmanaged. Research and experience shows that the aggressor is typically a self-proclaimed victim who, over time, morphs into an avenger. One of the less rec-
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