Inge Sebyan Black
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nesses, and suspects. It is given verbally but might subsequently be recorded
in written form. Admissions and confessions gained through the interroga-
tion of a subject are one kind of testimonial evidence.
Interviewing is the primary method of collecting testimonial evidence.
Interviews are different from interrogations in that their objectives differ.
The goal of interviewing is to collect truthful data to be used for informed decision making and for taking action. An interrogation, on the other hand, is a
face-to-face meeting with a subject with the distinct objective of gaining an
admission or a confession related to a real or apparent violation of law or policy.
VOLUNTARY CONFESSIONS
If you are a private investigator, a corporate investigator, or a security man-
ager, you will want to get a written confession after a suspect makes a verbal
confession. This written confession will be a statement detailing all the facts
of the case that the interviewee can recall. If you work for a law enforcement
agency or a federal agency, you are required to give a suspect a Miranda warn-
ing. 1 The confession must still be voluntary but obtained after the suspect was given a Miranda warning or the confession will be rejected as evidence at a
trial or administrative hearing. Before a person in police custody or other-
wise deprived of freedom “in any significant way” may be interviewed or
interrogated, Miranda warnings must be given (Miranda v. Arizona
1 http://usgovinfo.about.com/cs/mirandarights/a/miranda_2.htm.
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[1966]). The exact wording of the Miranda rights statement is not specified in
the Supreme Court’s historic decision. Instead, law enforcement agencies
have created a basic set of simple statements that can be read to accused per-
sons prior to any questioning. Here are paraphrased examples of the basic
Miranda rights statements, along with related excerpts from the Supreme
Court decision:
1. You have the right to remain silent.
2. Anything you say can be used against you in a court of law.
3. You have the right to have an attorney present now and during any
future questioning.
4. If you cannot afford an attorney, one will be appointed to you free of
charge if you wish.
5. Do you understand these rights?
These warnings have come to be known as the Miranda warnings, after the
U.S. Supreme Court case in which they were enumerated. The Miranda
warnings apply only to “investigative custodial questioning aimed at eliciting
evidence of a crime.” Subjects in custody must understand what they are
being told. The investigator is not permitted to bully a suspect into talking
once they decide not to do so, nor may the investigator attempt to dissuade a
suspect from speaking with a lawyer. This ensures that subjects in custody
know that they have the right to remain silent. 2 After receiving the required warnings and expressing willingness to answer questions, a subject in custody may legally be interrogated. It is unnecessary to embellish the Miranda
warnings or to add new warnings. Similarly, it is unnecessary to use the exact
language contained in Miranda.
In Canada, equivalent rights exist pursuant to the Charter of Rights and
Freedoms. If arrested, a person has the right to:
1. Be informed promptly of the reasons therefor
2. Retain and instruct counsel without delay and be informed of that right
3. Have the validity of the detention determined by way of habeas corpus
and to be released if the detention is not lawful
Around the world, other countries have a standard letter of rights, similar to
the U.S. Miranda warning that is given to criminal suspects in police custody
before an interrogation begins.
To ensure that a confession holds up in court, follow proper procedures
for interviewing the subject. If you are in the public sector, you must make it
clear when a suspect is not under arrest and must document that the suspect is
2 Harryman v. Estelle, 1980.
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The Art of Investigative Interviewing
free to leave if he or she so desires. If the inquiry is held in an official location, such as a police station, it is imperative that interviewees comprehend that
they are not being detained or in custody, if such is the case. Voluntary
response is vital in these matters. To fight the admissibility of a confession
in court, defense attorneys sometimes argue that psychological coercion
was used to obtain the confession.
Some investigators earnestly urge the subject to grant permission for the
interrogation; other investigators, directly or indirectly, strongly advise the
subject not to grant permission. As you give the warnings, use a neutral tone
and a matter-of-fact manner. This is not a time to caution, suggest, frighten,
or admonish the person in custody.
Let’s take a minute to examine the words interview and interrogation, because
they will undoubtedly come up throughout this book and throughout your
career as an investigative interviewer. An interview is a nonaccusatory question-and-answer session with anyone you are trying to obtain information from—
witnesses, suspects, or victims. If you recall, the successful interview is one that collects accurate and useful information. Some of the questions may be of an
investigative nature, some to elicit behavioral responses. The interviewer is
building rapport and maintaining a nonaccusatory tone and demeanor
throughout the interview. The skilled interviewer will ask questions that pro-
duce a narrative answer rather than a yes-or-no response. Because of the
nature of the questions, the interviewee will do most of the talking. The only
information gathered should come from the interviewee.
An interrogation is often used to elicit the truth from a person the investi-
gator believes has lied during an interview. There may come a point in the
interview that it turns from an interview into an interrogation or the other
way around. It will depend on the interviewee as to the information he gives
up or the information he is hiding. An interviewer that is skilled will be able to take it from an interview to an interrogation and then back when necessary.
It takes practice to be able to read a person and then determine your strategy.
We will talk more about practice, preparation, and skill throughout the book.
When the Miranda Warnings Are Required
In 1976, the Supreme Court removed the misconception that Miranda
warnings must be given to anyone upon whom suspicion is “focused.” 3
Rather, the Court said, the warnings are required only when the subject
is in police custody.
3 Beckwith v. United States, 1976; Inbau et al., 1986
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In an earlier case, the Court had defined “in police custody or otherwise
deprived of freedom in any significant way” (the wording used in Miranda v.
Arizona [1966]). The Court said that the key elements are “the time of the
interrogation, the number of officers involved, and the apparent formal
arrest of the subject” (Orozco v. Texas [1969]).
Regarding noncustodial interviewing within a police facility, the
Supreme Court held that a noncustodial situation does not requ
ire the
Miranda warnings simply because a reviewing court concludes that, even
in the absence of any formal arrest or restraint of freedom of movement,
the questioning took place in a “coercive environment” (Oregon v. Mathiason
[1977]). The Court considered the circumstances of the interrogation when it
provided this opinion:
Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with
a crime. But police officers are not required to administer Miranda warnings to
everyone whom they question. Nor is the requirement of warnings to be imposed
simply because the questioning takes place in the station house, or because the
questioned person is one whom the police suspect. Miranda warnings are required
only where there has been such a restriction on a person’s freedom as to render him
“in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable and to which it is limited.
Legally, interrogation is defined as asking a question, making a comment, dis-
playing an object, or presenting a police report if this action calls for a
response that may be incriminating. The subtle use of these actions makes
them “functional equivalents” of direct questions asked during an interro-
gation (Brewer v. Williams [1977]). This means that they, too, are bound by
Miranda, but an exception can be found in Rhode Island v. Innes (1980).
If suspects who are not in custody freely consent to be interviewed or
interrogated, there is no requirement that they be given the Miranda warn-
ings. If an interviewee begins to confess without being interrogated, let him
or her continue without interruption. When the confession has concluded,
give the Miranda warnings to prevent any court from holding that custody
began at the conclusion of the confession.
Subjects in custody can waive their constitutional rights. This is usually
done in writing and is signed, but oral waivers will suffice.
Police officers working private or part-time positions are bound by the
Miranda ruling. If you are not conducting the investigation as a police officer, the Miranda decision does not affect you unless you are acting in cooperation
with the police as a police agent. It’s important to realize, however, that
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The Art of Investigative Interviewing
regardless of your role as an investigator, if you compel someone to confess,
you are coercing a confession that will not hold up as legal evidence. Pri-
vate security investigators generally do not have to administer Miranda
warnings.
LEGAL TACTICS USED IN SEEKING A CONFESSION
Be fair and practical in interrogating or interviewing anyone, particularly
suspects in custody. It is vital to avoid saying or doing anything that might
cause an innocent person to confess. Do not use coercion, intimidation,
threats, promises, or duress to force a confession; such action is neither legal nor acceptable. Intimidation reaps resentment, not truthful cooperation.
Different parts of the world have different ethical standards and techniques;
not all techniques used in some countries would be considered fair and pro-
fessional in North America. Such tactics are self-defeating and inappropriate.
The following legal tactics can be used during an interrogation:
•
Exhibit confidence in the subject’s culpability.
•
Present circumstantial evidence to persuade the subject to tell the truth.
•
Observe the subject’s behavior for indications of deception.
•
Empathize with and help the subject rationalize his or her actions and
save face.
•
Minimize the significance of the matter under investigation.
•
Offer nonjudgmental acceptance of the subject’s behavior.
•
Point out the futility of not telling the truth.
•
Follow your senses and intuition.
Trickery and deceit are often used in interrogations. The U.S. Supreme
Court gave recognition to the necessity of these tactics in Frazier v Cupp
(1969). The Court held: “The fact that the police misrepresented the state-
ments that [a suspected accomplice] had made is, while relevant, insufficient
in our view to make this otherwise voluntary confession inadmissible. These
cases must be decided by viewing the ‘totality of the circumstances.’”
EVIDENCE COLLECTION AND PRESERVATION
Strict rules govern the handling of all evidence before it is presented in court.
The court that ultimately hears the evidence will want to know whether it
was obtained legally, who handled it before it reached the court, and how it
was handled. Does the evidence bear directly on the case, and does it accu-
rately represent what happened? Was it tampered with in any way? Is it
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47
tainted? Before you begin to hunt for evidence, you must know what you’re
searching for, and that, in turn, depends on the objective of your investiga-
tion. If your objective is to prove intent in some criminal, civil, or admin-
istrative investigation, you may be looking for documents bearing a certain
date or signature. If it is a hit-and-run case, the evidence may be skid marks
or broken car parts on the road. When interviewing an eyewitness, you may
be searching for what the person heard or saw at the crime scene.
There is a difference, of course, between knowing what type of evidence
you are looking for and searching only for evidence that suits some precon-
ceived notion of who is culpable. Although having a theory or being guided
by probabilities is generally acceptable, twisting the evidence to distort the
truth is not. Professional investigators strive to maintain a neutral manner
and an open mind so that they can impartially collect all available evidence.
If you obtain an admission or a confession, you will be challenged about
how you obtained it. Did you determine that the interviewee was lying
based on your intuition and observations? As you collect evidence, be sure
to make every effort to ensure that all evidence is obtained legally. In decid-
ing whether to admit testimonial evidence, courts consider who was present,
what was said, and how it was said. If evidence is contaminated by coercive
tactics, threats, or illegal promises, we can expect a court to throw it out.
Even though you may collect massive amounts of evidence, not all of it
will be pertinent to your investigation. You could interview 50 people and
find only two who have useful information. Details of the other 48 inter-
views should not play a significant role in your report other than a notation
that the interviews took place.
All evidence—real, documentary, and testimonial—can become con-
taminated. Preserving evidence and protecting it from contamination are
vital to its successful presentation in court.
The following is a list of the types of evidence you should look for:
•
Ammunition
•
Arson, acc
elerants used
•
Assault, blood, DNA analysis, and DNA profiling
•
Blood splatters
•
Barcodes
•
Bite marks
•
Body fluids
•
Burglary, tools, and tool marks
•
Computer
•
Corpus delicti
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The Art of Investigative Interviewing
•
Cell phone and text messages
•
Social networks
•
Drugs
•
Fibers and laundry marks or dry cleaning marks
•
Fingerprints
•
Glasses
•
Hair
•
Rope and rope knots
•
Wood, paint, and cement
•
Sex cases, rape kit exam
•
Shoe impressions
•
Tire or wheel impressions
•
Material sent to the FBI lab
•
Answering machine and voice prints
•
Soil
•
Weapons
•
Forensic science characteristics
•
Graffiti
•
Computers, iPhones, iPads, Kindles
•
Keys
The investigation and gathering of evidence are both a science as well as an art. Investigators and interviewers today need to have more skills than merely a badge and a gun. You have to have a head for facts, you have to have to think outside the box and you need to have persistence, dedication, instinct, and patience.
REPORT WRITING
Often, reports are official documents that detail how evidence was collected
and preserved during an investigation. Hence they are an important part of
the chain of custody.
The technique of report writing can be learned by anyone who possesses
two basic qualities: fundamental communication skills and a trained ability to
observe. To be a competent investigator, you must write reports clearly so
that everyone who reads them will know what you did and why. Often the
report is needed long after the crime and must be interpreted by many peo-
ple unfamiliar with the crime. Interviewers must write the report so that the
prosecutor and courts can fully understand what took place.