Investigative Interviewing: Psychology, Method and Practice
Page 46
Workplace investigations and the investigative interviews that accompany them are essential tools that enable us to make that possible. Good luck and have fun.
Endnote
1. J. S. Cawood and M. H. Corcoran, Violence Assessment and Intervention: The Practitioner’s Handbook, 2nd ed. (Boca Raton, FL: CRC Press, 2009), 7, 173.
Afterword
Thank you for reading this book. I hope that you have found it informative and
useful. To improve upon it in future editions and any works I might undertake at some later date, your thoughts and comments would be appreciated. My preferred
method of correspondence is email. My address is gene.ferraro@Convercent.com.
If you have constructive input or a criticism, please share it with me. I will respond personally and will answer all reasonable questions, time permitting.
Alternatively, if you would like to learn more about investigative interviewing, attend one of my seminars entitled The Investigative Interview Method, Advanced Course. For information about it and the other training opportunities offered by me and my firm, visit our website at www.convercent.com. I hope to
see you there.
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Appendix 1
Glossary of Common Investigative
Terms and Terminology
Accomplice: Criminal cohort or conspirator. One who aids and abets others in the commission of a crime or offense.
Action: A lawsuit brought in court.
Actionable: A matter that may be subject to a legal action or intervention.
Addendum: A statement prepared by an interviewer on behalf of himself, not the interviewee. In it, the interviewer should include information not contained in the interviewee’s statement (if one has been provided) or else-
where during the investigative process.
Adjudicate: To legally resolve and bring to formal closure.
Administrative interview: Interviews conducted for the purpose of gathering information, versus investigatory interviews, which are conducted for the purpose to obtain admissions.
Admissibility: The legal authority permitting the entry of evidence into a legal proceeding.
Admissible: Evidence that may be formally considered in a legal proceeding.
Admission: The simple admission to the commission of an offense, work rule, or policy violation, or violation of the law. Differs from a confession in that
it may or may not contain all of the elements of the offense or crime in
question. Not to be confused with confession. A properly obtained admission is a valuable piece of evidence in most workplace and private sector
investigations.
Affirm: To uphold or establish.
Agency: A legal doctrine in which the legal duties and responsibilities of a government actor (i.e., the police) are conferred to its agent (a private fact finder).
The result often imparts rights to an individual (subject) not otherwise
available.
Answer: Respond to a formal allegation, normally in writing.
299
300 ◾ Appendix 1
Appeal: An application to a higher court to correct or modify a judgment rendered by a lower court.
Arbitration: An informal means of alternate dispute resolution without the use of a judge or jury. An arbitrator presides over the proceedings and at its
conclusion renders a decision in favor of one party or the other.
Arrest: The taking of a person into custody in a manner provided by law for the purpose of detention in order to answer a criminal charge or civil demand.
Attorney client privilege: A legal doctrine that protects certain communications between a client and his or her attorney and keeps those communications
confidential.
Attorney work product: Evidence that a party to a lawsuit does not have to reveal during the discovery process because it represents the thought process and
strategy of the opposing attorney preparing for trial.
At-will employment: A policy (public or private) that allows an employer to terminate one’s employment for any lawful reason or no reason at all. Such
policies also permit the employee to quit with or without at-will.
Beyond a reasonable doubt: The standard of proof necessary to obtain a conviction in a criminal proceeding.
Case file: The tool used by fact finders to organize and maintain their records, documents, and reports during an investigation.
Chain of custody: A record detailing those who handled or possessed a piece of evidence. Synonymous with chain of evidence.
Chain of evidence: See chain of custody.
Circumstantial evidence: Indirect evidence that in and of itself does not prove a material fact. Often gathered and used cumulatively to prove a fact.
Coercion: To compel by force or deception.
Commercial fraud: Any type of fraud committed against a business or
organization.
Compensatory damages: Damages awarded to a plaintiff that are intended to compensate for a loss or other hardship.
Confession: A comprehensive admission to the commission of an offense or violation of the law that contains all of the elements of the offense or crime in
question. Not to be confused with admission.
Corporate investigations: Investigations performed at the direction of the organization, for the organization. Usually involves the investigation of crimes
and offenses committed against the organization. Differs from work-
place investigations in that the subject of the investigation may not be an
employee or former employee of the organization.
Covert surveillance: Surveillance that is intentionally covert or undetected.
Credibility: The reliability or trustworthiness of an individual.
Custodian of record: The person or entity responsible for record retention and preservation.
Appendix 1 ◾ 301
Decision maker: The member of the investigative team responsible for making decisions regarding discipline and corrective action.
Defendant: The accused. The party whom the plaintiff opposes.
Direct evidence: Evidence that proves a material fact.
Discovery: The legal process of obtaining information and/or evidence from a legal opponent.
Disparate treatment: Unfair or unequal treatment of an individual or group.
Double-hearsay evidence: Testimony from a person who has third-hand
knowledge.
Due process: The collection of rights principally arising from the Bill of Rights that provide criminal suspects protections against abuses by the government.
Electronic surveillance: Any form of surveillance that uses electronic technology and does not require constant human monitoring.
Embezzlement: The unlawful appropriation of property or assets of another of which one has been entrusted.
Entrapment: Actions that might induce an otherwise honest citizen to commit a crime that without the inducement would not have committed.
Entrapment is a criminal defense and is not crime. In order to use entrap-
ment as a defense, the accused must first admit he committed the offense.
Evidence: Evidence is any type of proof that, when presented, is materially capable of proving or disproving a contention or fact. In order to be used or admissible, the evidence must be material to the matter in question.
Fact finder: A person engaged in the systematic collection, analysis, and preservation of information and/or facts related to the matter in question. The
fact finder is often a member of an investigative team and typically works
under the direction of a project manager.
Fact pattern: The collection of known facts associated with or directly related to the matter in question.
False imprisonment: The criminal or civil offense of improper arrest or detain-ment without confinement, of a person without proper
warrant or author-
ity for that purpose by force, intimidation, or coercion.
Fidelity insurance: Commercial insurance coverage against employee theft and dishonesty.
Fraud: Theft by deceit and deception.
Good faith investigation: A fair and impartial investigation conducted by an employer on its behalf. When used to make a reasonable conclusion, it
becomes the standard of proof needed to justify employee discipline.
Hearsay evidence: Testimony from a person who has secondhand knowledge.
Immunity: Protection against prosecution. Typically granted in order to obtain some form of cooperation.
Impeach: To render one’s testimony useless or diminish their credibility.
Inadmissible: Evidence that cannot be formally considered in a legal proceeding.
302 ◾ Appendix 1
Intent: A state of mind that, if proved, demonstrates the intention to commit a criminal act.
Interrogation: A highly structured and formal interview intended to yield a confession.
Interrogator: One who conducts interrogations.
Interview: A conversational exchange for the purpose of collecting information.
Interviewer: One who conducts interviews.
Investigative interview: A highly structured interview intended to obtain an admission.
Judgment: A legal finding of responsibility.
Jurisdiction: An area or subject over which a party has authority.
Kickback: Money or something of value improperly provided to obtain something else of value.
Malfeasance: Intentional conduct or behavior contrary to the interests of others.
Employee theft or substance would be considered employee malfeasance.
Miranda rights and warning: Legal rights imparted on those taken into custody when suspect of having committed a crime.
Motive: The reason for having committed a crime or offense.
Operative: An undercover investigator.
Physical surveillance: Any form of surveillance that uses people. May be augmented with technology, but requires constant human monitoring.
Plaintiff: The party that brings a legal action.
Preemployment screening: A form of investigation used to verify the identity, personal history, and credentials of an employment applicant.
Privacy, the right to privacy: The expectation of freedom from the unwanted intrusion of others into one’s home, papers, or affairs.
Private investigations: Investigations performed in the private sector typically for private citizens involving nonworkplace issues.
Private sector: The realm under the management, supervision, and authority of nongovernment entities. May include public and privately owned companies, nonprofit organizations, and other private institutions. Those not
employed by the government are in the public sector. Those suspected
of a workplace offense may be the subject of a private sector investigation conducted by their employer or agents, and, if determined responsible,
punished by their employer.
Privilege: A legal protection that permits the lawful withholding of information or evidence from an opponent during the course of litigation. May be used
in both criminal and civil cases.
Pro bono: A term generally used to describe professional work undertaken voluntarily and without payment as a public service. It is common in the legal
profession and is increasingly seen in marketing, technology, and strategy
consulting firms.
Appendix 1 ◾ 303
Process of Investigation: A highly structured and sometimes scientific approach to investigation. Sufficiently structured to provide uniformity and consistency yet, fluid and flexible enough to accommodate most any situa-
tion or fact pattern.
Project manager: The functional manager leading or directing the investigative process and the investigative team under his supervision. The project
manager is typically the point of contact through whom those outside the
investigative team communicate.
Public policy: Unwritten expectations relative to one’s behavior and conduct.
Public sector: The realm under the management, supervision, and authority of the government. Those in public law enforcement are employed in the
public sector. Those charged with committing a crime or accused of violat-
ing the law may be subject to the rule of law and tried in the public sector.
Punitive damages: Damages awarded that are intended to punish the defen-
dant and serve as a deterrent to prevent others from engaging in similar
behavior.
Restitution: The act of making another party whole. Most often, restitution involves the payment of money.
Return on investment: The return enjoyed on any particular investment. The return may be monetary or otherwise.
ROI: See Return on investment.
Spoliation: Intentional destruction of evidence.
Standard of proof: The quality and quantity of proof necessary to make a lawful finding of responsibility.
Subject: The individual who is the subject of the investigation or matter in question. Not to be confused with suspect as used in the public sector. The subject may or may not be a suspect.
Subrogation: The pursuit of another party one deems ultimately responsible.
Surveillance: The observing or monitoring of people, places, or things.
Trier-of-fact: Any person or body charged with the duty of adjudication.
Undercover investigation: A method of investigation that entails the surreptitious placement of an investigator into an unsuspecting workforce for
purpose of information gathering. These are typically complicated inves-
tigations and should only be attempted after other means of information
gathering have been ruled out. Referred to as UC in the trade.
Upjohn warning: A written warning (typically in letter form) given to an employee at the onset of an investigative interview to ensure that the employee knows
that the privileged relationship (should one exist) is between the attorney
conducting the interview and the organization and not the employee.
Upjohn Co. v. United States, 449 U.S. 383 (1981).
Verification and analysis: That phase of investigation during which the fact finder interviews those he thinks are most involved in the matter in question.
304 ◾ Appendix 1
Workplace investigations: Any investigation taking place in or involving the workplace. May be conducted by those either in the private or public sector.
Typically involving the investigation of employee misconduct, workplace
policy violations, or work rule violations. The matter under investigation
may or may not be a violation of the law. Not to be confused with private
investigations.
Appendix 2
Investigations Checklist
This tool is to be used only as a guide. No two workplace investigations are identical; therefore, a single checklist is not suitable for every type of investigation.
◾ Is the matter work-related and has the organization a duty to investigate?
◾ If allegations have been made, are they credible?
◾ Are there any immediate safety implications that must be addressed?
◾ To who else should the matter be reported?
◾ Is there a need to report the matter to anyone outside the organization?
◾ Have reasonable objectives been identified?
◾ Have milestones and timelines been established?
◾ Is a budget necessary and has one been decided?
Things to accomplish:
◾ Identify investigative team members and assign responsibilities.
◾ Create a case file.
◾ Perform preinvestigation investigation.
◾
Identify cast and document cast of characters and potential witnesses.
◾ Gather and secure any physical evidence.
◾ Secure personnel files.
◾ Address PR and the rumor mill.
◾ Update management and keep those with a need to know properly informed.
◾ Think safety.
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Appendix 3
Interview Guidelines
The following tips will help you obtain better, more useful statements:
1. Always use black ballpoint pens.
2. Spell out the full names of all parties involved; do not use just first names.
3. Print your Employee Information Sheets in black ballpoint pen. Make all
corrections in red ballpoint.
4. Always print your name under your signature.
5. All statements should state the city, county, and state in which they are taken.
6. Always indicate the last time an event occurred and whether or not it occurred on or off organization property.
7. Check off each item on the written checklist as you accomplish it. Cross out (x) those items that do not apply. Also, complete the heading entirely.
8. Always let the interviewee write his own statement. If he cannot, do it for
him, but be sure to state in it that you have done so and why.
9. Write all addendums on statement paper.
10. If the use of drugs or alcohol took place off organization property, but the employee returned to work, indicate in the statement whether or not the
employee was impaired at the time he was at work.
11. Sign all written statements and have them witnessed.
12. Treat every interviewee with respect and dignity.
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Appendix 4
Interview Guidelines for Management
Introduction of the Subject by Client
“ , this is (he or she) and his team recently assisted us to look into
(whatever the problem is). They have completed that effort and today he
would like to share with you some of what (he or she) and his team learned
during that effort. We expect and appreciate your cooperation.”
During the Interview:
The interviewer will periodically provide updates. Interviews range in
length from 30 minutes to over 3 hours. Both the interview supervisor