Investigative Interviewing: Psychology, Method and Practice
Page 14
A separate evidence folder or something similar should be used to store all original documents. Only copies should go into the binder. Eventually, additional binders can be created if necessary. Document storage boxes can then be labeled and used to store the binders, evidence folders, and anything else of importance. Evidence labels,
The Fundamentals of Interviewing ◾ 71
rubber stamps, Bates Stamp (a sequential numbering device), and bar code labels can all be used to mark, identify, and further organize the materials.
Many fact finders create a diary or journal detailing their day-to-day efforts.
Thus, journal entries are made for each activity or event that occurs over the life of the investigation. Incorporating the date and time these activities and events occurred or were accomplished creates a detailed record for future reference. The journal in this sense permits one to figuratively reconstruct the investigation should it be necessary. Most experienced fact finders keep such a record.
3.3.1.2 Using Technology
Using standard office applications, such as word processors and spreadsheets, the fact finder can electronically organize his information and thoughts. The fact finder can create files, folders, and databases to create and organize task lists, records, documents, and reports. Products, such as CaseMap® and TimeMap®, can further
help the fact finder organize himself and his investigation. Both of these powerful software applications are available from CaseSoft (www.casesoft.com), now owned by LexisNexis®, one of the nation’s largest and most respected providers of litigation support. Though designed for the legal profession, CaseMap can be equally useful to the fact finder managing large investigations. The software allows the user to organize and explore facts, the cast of characters, the issues, and all of the legal aspects of the case. It provides the fact finder the ability to electronically perform link analysis and pull together a cogent expression of his findings. TimeMap is an enhancement that allows the user to create chronology visuals. Because it plugs into CaseMap, the combination of the two makes a powerful investigative tool capable of handling the most complicated of cases. Both of these products are now hosted applications on a Microsoft® SQL Server® platform for centralized and secure remote access to one’s data and case files, enabling speedy access to every authorized user within the wide area network.
My firm, Convercent, Inc., also offers a cloud-based case management solution.
Over 35,000 customer locations in 150 countries currently use it. You can learn more about it by going to Convercent.com. Figure 3.3 is a screen shot from our case management portal.
Solutions like that of Convercent should at a minimum provide users with:
◾ web-based access allowing real-time access from anywhere, anytime
◾ alerts providing notification of overdue tasks and progress updates
◾ centralized capture of all case details in a secured central repository
◾ robust task management features
◾ dashboards that provide real-time information regarding trends, perfor-
mance, and all relevant investigative activities
◾ ad-hoc reporting capabilities enabling customized professional looking
reports
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Figure 3.3 Convercent case management portal.
Another less sophisticated, but useful tool is a product called The Case File. The Case File is a collection of fact finder tools including investigative forms, checklists, and report templates. The product includes an actual sample case file and a CD on which are all of the forms, checklists, and templates in MS Word® and Rich Text Format (.rtf). The documents are professionally formatted and neatly organized.
Because they are electronic, they can be easily manipulated and customized. The user license allows unlimited use and duplication of the documents. Both novice and experienced investigators will find The Case File an invaluable tool. It is
The Fundamentals of Interviewing ◾ 73
available from InfoQuest Investigators at www.thecasefile.com. Figure 3.4 sum-
marizes some of the contents of my version of The Case File.
It is easy to see that The Case File contains many useful items. The real value, however, is that, if used properly, it is able to provide enterprise-wide case file and project management standardization. The standardization facilitates easier file review, easy case file sharing or reassignment, and, when used in its electronic form, it permits electronic entry of data and notes.
Because large or complex projects tend to generate a large number of docu-
ments, naming one’s electronic files also deserves some consideration. The
system used may vary depending upon the type of documents being named.
For example, the Correspondence folder might contain letters, memorandums,
and faxes. Hypothetically, the documents in a multifile folder might be named
as follows:
Fredrickson, Robert Letter 01.doc
Fredrickson, Robert Letter 02.doc
Fredrickson, Robert Letter 03.doc
Fredrickson, Robert fax 01.doc
Fredrickson, Robert memo 01.doc
Fredrickson, Robert memo 02.doc
Gross, David Letter 01.doc
Gross, David fax 01.doc
Gross, David memo 01.doc
Gross, David memo 02.doc
This method uses the recipient’s name (last name first) as the primary identifier, followed by the type of document, followed by a number representing the sequential order in which the documents were created.
Tip: Impose organization and structure on your electronic file folder and file system before you begin your fact finding. Structure your document management
process such that it allows your work product to be easily filed and retrieved.
Exercising discipline during the early phases of the project can save time and frustration later.
The necessity of a physical (paper) case file is a matter of opinion. I happen to prefer its use. Others seem to think it is not only unnecessary, but wasteful as well.
Because so many of my firm’s cases involve matters in litigation or those likely to be involved in litigation, discovery issues are a consideration. An organized case file with all of its contents neatly tabbed and organized under colored covers has eye appeal. It also suggests professionalism and a high degree of sophistication. These
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Section/Forms
Notes and Instructions
“Case/Subject”
Contract of
This is included since this same file is used as a complete
Retainer
package by private investigators. You may modify this to
be a contract you use for outside investigators, or just
remove it from your folder.
Subject Data File
Shows category and line number of the main “Subject
Table of Contents
Data File” and allows you to show which areas of
information are provided, needed, and completed.
Subject Data File
A 35-page fill-in-the-blank dossier on the subject of your
investigation.
Addendum Sheet
The “Subject Data File” is line numbered. Use the
addendum for overflow information or for annotation.
Table of Contents
Shows layout and organization of the Investigative File.
“Theory”
This section is grouped in the first section with your subject and case. As you start the case with what you already know, you use the “Theory” section to list what you need to know.
The To-Do List
General list to list necessary activity. Check its
completion, and delegate.
Case Activity
A comprehensive checklist of sources to be used in
Game
plan I
gathering info.
Case Activity
A “to do” list organized by activity rather than source.
Gameplan II
Quick-Scan
Make a list of people you will talk with on a regular basis
Contact Log
or use to match people, phone numbers, e-mail etc. with
each other.
Other Contacts
People associated with your client that the investigator
– Client
may or should contact.
Other Contacts
People associated with the subject that are friendly to the
– Subject
investigation. OR, people such as the subject’s attorney.
Time Line
Use to develop time relationships of factors leading up to
an incident, or comparisons of witness testimonies, etc.
Figure 3.4 Case file contents.
The Fundamentals of Interviewing ◾ 75
impressions are useful to my clients if our files are ever produced in discovery. Your situation might be quite different and, as such, you might decide physical files are entirely unnecessary.
Although all of these aspects of management systems need to be contemplated
and decided, case file retention deserves special attention. How long one should retain case files is debatable. Federal law regulates record retention in a variety of areas. For example, aspects of the Occupational Safety & Health Act (OSHA)
require some records to be kept the length of the employee’s tenure plus 30 years, and records pertaining to the Employee Polygraph Protection Act, such as why a
test was administered and its corresponding results, must be retained only three years. Statutory record keeping under Title VII of the Civil Rights Act of 1964
is less straightforward. The Equal Employment and Opportunities Commission
(EEOC), which is responsible for enforcement of Title VII does not require that any record be created, but once created, rules require the record be retained for one year from the date personnel action was taken. In the event a formal charge or lawsuit is filed, all relevant records must be kept until “final disposition.” The confusing and often conflicting array of state and federal requirements makes record retention policies complicated and burdensome. Compliance and enforcement of
such policies is even more burdensome. As such, many employers keep everything
forever. I, for one, think something a little more reasonable is in order.
A nonscientific survey of licensed investigators that specialize in workplace
investigations that I recently conducted revealed that most intend to retain their files for somewhere between seven years and indefinitely. Those that stated that they periodically purge their files said they do so only when they thought of it. Only a few of the professional investigators I surveyed said they have systematic record destruction procedures. Fewer still could explain what those procedures were.
My suggestion is to retain case files not less than seven years. Absent a clearly defined policy, in most instances, after seven years, case files tend to be misplaced, lost, or accidentally disposed of in the normal course of business. When someone leaves or changes position, it is very rare they are asked to surrender investigative case files and materials pertaining to past investigations. Usually the stuff just gets misplaced or thrown away. Establishing a policy requiring indefinite retention creates an unnecessary administrative burden and potential liability for the organization. With such policies in place, the organization that cannot produce a file when needed can be accused of a cover-up or worse. Conversely, the systematic
destruction of files also can raise questions. However, a reasonable policy that is consistently applied is tough to attack and usually can be defended.
Tip: Case file retention practices deserve thorough consideration before implementation. Retention of case files for seven years from the date of closure is considered the minimum.
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3.3.2 Evidence Collection and Preservation
Of equal importance to case file documentation and organization is evidence management, a topic of which entire books have been written. Because evidence is available in so many forms, it is not practical to examine the topic in its entirety here, nor do I intend to do so. However, the subject should be discussed briefly.
3.3.2.1 Definition of Evidence
Evidence is any type of proof that, when presented, is materially capable of proving or disproving a contention or fact.4 In order to be used or be admissible, the evidence must be:
◾ competent
◾ relevant
◾ material
The competence of the evidence speaks to its credibility and its relevance speaks to its pertinence. That is, one must be able to rely on evidence with some level of certainty and it must pertain to the issue in question. In this sense, materiality speaks to the state or quality of the evidence. Direct evidence is that means of proof that tends to show the existence of a fact without the intervention of proof of any other fact, and is distinguished from circumstantial evidence, which is often called indirect evidence.5 Circumstantial evidence is evidence that is inferential by establishing a condition or premise from which the existence of the principal fact may be concluded by reasoning. By nature, all presumptive evidence is circumstantial.
However, all circumstantial evidence is not presumptive, as it leads to necessary conclusions instead of probable ones.
3.3.2.2 Hearsay Evidence
Hearsay evidence is evidence not proceeding from the personal knowledge of the
witness, but from the mere repetition of what the witness has heard others say.
When the source that had allegedly been heard is not available to testify, hearsay evidence typically is not admissible. One exception is when the defendant’s conduct is at issue or is relevant; statements made in his presence by which his conduct can be inferred are admissible when the defendant makes no denial.6 By
their very nature, most statements and declarations (statements taken under oath) are hearsay when the author is unavailable to authenticate the document. Such
documents are double-hearsay if they include reference to statements made by the accused. However, statements and declarations that include an admission made by the accused (assuming they were properly attained) constitute the highest quality of evidence available in workplace investigations.
The Fundamentals of Interviewing ◾ 77
Trap: Many fact finders’ self-imposed rules of evidence are exceedingly strict. Thus, excluded is evidence that otherwise would be admissible in the typical workplace investigation. Lowering the standard of proof eases the rules of evidence and permits the use of evidence otherwise not possible.
3.3.2.3 Admissibility and Materiality
In many regards, the admissibility, and often the materiality, of evidence are tied directly to the standard of proof. For example, in unemployment insurance benefit eligibility hearings, sometimes cal ed UI hearings, nearly all forms of evidence are admissible. Administrative law judges hearing these cases will usual y al ow the introduction of any and all evidence. And, in my experience, even evidence of questionable origin (i.e. fabricated). Procedure requires such evidence to be weighted (not weighed) and accorded the consideration it deserves. All this makes for rather loose proceedings.
However, that is the intent. Because representation is optional in these venues, the rules are relaxed in order to ensure fairness to those who do not have representation. Most arbitration hearings are similar. It is usual y the arbitrator that establishes the “rules of evidence” and determines what is admissible and what is not. As such, the outcomes of arbitrations are highly unpredictable. The fol owing is a fine example.
Sometime ago, one of my undercover drug investigations resulted in the ter-
mination of over 30 employees. All but one of the employees was a
member of a
collective bargaining agreement and entitled to grieve their discipline. The grievances ultimately resulted in arbitration. The arbitrator, well known for the liberal application of his authority, allowed the admission of all forms of evidence and claims. Although all of the grievants had provided written admissions during the investigation detailing their transgressions, he allowed them to recant or alter them substantially during the hearing. He allowed the argument that the admissions that were obtained without a union representative present were coerced. He ignored the fact that many of the admissions were corroborative to one another and that several of the grievants admitted that, even had a union representative been present, their statements to our investigative interviewers would not have been substantially different. He also allowed the union to raise the issue of discrimination. Although a full two thirds of the workforce were minorities, less than a third of the grievants were. To cap it off, he allowed several of the grievants to introduce statements written by them asserting their own innocence, which they had penned after the fact.
The final travesty of justice was served when the arbitrator rendered his decision and ordered of all of the grievants be returned to work.
The rules of civil and criminal procedure do not allow for such injustices. Both in civil and criminal court, the rules of evidence are codified and, for the most part, adhered to. Uniquely, workplace investigations are subject to the rules of evidence
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imposed by the employer. Short of legal challenge, the employee enjoys the prerogative of deciding both the standard of proof and the rules of evidence in deciding workplace issues. The challenge is to balance the need for fairness and maintaining workplace order. The employer’s decisions regarding discipline must be lawful, fair, impartial, and consistent.
3.3.2.4 Spoliation of Evidence
Spoliation is the intentional or negligent destruction of evidence and constitutes an obstruction of justice. Spoliation is also the destruction, or significant and meaningful alteration, of a document or instrument.7 The rules of evidence impose an obligation to retain and produce evidence deemed admissible and relevant in
criminal and civil matters. The intentional and sometimes even the unintentional destruction of evidence may be unlawful and/or civilly actionable—and for good