We will examine these and other aspects of proxemics in greater detail later in this chapter.
4.2.1.3 Interviewer Selection and Preparation
Good interviewers are conversationalists. They like to talk and, most importantly, they like to listen. Good interviewers are professional and disciplined. They embrace structure and process. Not all fact finders should be considered interviewers. In selecting an interviewer, his skills, training, and experience should be mapped to the intended interviewee or project. Generally, men should be selected to interview men, and women should be selected to interview women. This is not absolutely
necessary; however, experience shows that matching the gender of the interviewer and interviewee often eliminates the need for a witness and is often less stressful for the interviewee.
The interviewer should have some knowledge and experience regarding the mat-
ter under investigation. Such qualities reduce the steepness of the learning curve and tend to accelerate the investigative process. Moreover, the properly qualified interviewer is less likely to be misled by an interviewee or misunderstand what they are being told. The interviewer also should have empathy. The ability to appreciate and understand the feeling of others is a virtue. Every interviewer should be kind, gentle, and understanding. There is no need to be tough or unsympathetic. The
question of interviewer dress frequently arises when discussing workplace interviews. Here is some obvious advice:
◾ Dress professionally
◾ Do not wear expensive jewelry or watches
◾ Practice good personal hygiene
◾ Do not use perfume or cologne
The interviewer also should:
◾ be properly rested and fed
◾ have dealt with all other potential distractions in advance
◾ have planned his day so that he will have all the time he needs
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◾ place his phone on silent mode
◾ have proper writing tools and adequate paper
The interviewer also should:
◾ confirm the name and job title of subject
◾ acquire full details regarding the type and description of the incident or issue
◾ confirm the location of the incident or issue
◾ identify known or suspected witnesses
◾ acquire all of the details regarding the relationship of the various parties
◾ determine the subject’s whereabouts during the time in question
◾ determine the existence of any prior discipline or corrective action against any of the parties
◾ organize his case file, evidence file, and other materials
4.2.1.4 Case File Preparation
The interviewer should carefully prepare a working case file to use during the interview. This document is not the same as the original case file created during the fact finding phase of the investigation. That document should be kept in a secure place and not brought to any interview. The working case file is similar to it, but contains no original documents or evidence. It should be tabbed and contain at least the following items:
◾ Name and job title of subject
◾ Background of the subject
◾ Investigative report and notes
◾ Forensic and/or lab reports
◾ Witness summaries and statements
◾ Supporting documents and exhibits
◾ Images of key pieces of evidence
Tip: Organizing one’s materials into a neat working case file with tabs and an index is not only professional, when used it will demonstrate to the subject the seriousness of the matter at hand.
The second item on this list deserves special attention. Because investigative
interviews by definition involve those known or strongly suspected of having committed an offense, personal security is an issue. As a matter of practice, a thorough background investigation should be conducted whenever possible before an investigative interview. That investigation should include:
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◾ Identity verification to include name and Social Security Number confirmation.
◾ Personal history verification. This includes a search for the existence of criminal records, wants, and warrants for arrests. If necessary, retain the services of a preemployment screening and background investigation firm. Thoroughly
research the background of each intended interviewee. The background inves-
tigation should include at minimum: a seven-year criminal conviction history
(examine both felonies and misdemeanors); a driving record history; and a
public filing history (notices of default, civil judgments, liens/bankruptcies).
Check other states where the applicant lived over the past 7 to 10 years.
◾ Credentialing. If the subject is known or claims to be licensed or hold professional certifications or other credentials, verify each and document discrepan-
cies if any.
The results of this effort will better equip the interviewer to prepare for his own safety and that of everyone involved. Additionally, discrepancies between that which the subject provided during the employment screening process and that discovered during this research can be the source of additional questions during the interview.
What’s more, most employers consider providing false or untruthful information
during the employment screening process a terminable offense. In such cases, the results of the background can prove invaluable should the employer desire to terminate the employee who’s made no admission during his investigative interview.
4.2.1.5 Theme and Question Development
The interviewer also should prepare his theme. A theme is a monologue presented by the interviewer in which he offers a rationale for both the investigation and the known or suspected transgressions of the subject. Some interviewers develop different themes for different circumstances. While some find this helpful, it is not always a good practice. Regardless, your theme should not:
◾ absolve the subject of any legal consequences for his actions
◾ reveal everything you know about the offense
◾ disclose key pieces of evidence
◾ embellish the strength or amount of evidence
An unsophisticated theme might go like this: “Tommy, last evening someone
entered the facility using an access card other than his own. Once inside, the person roamed the executive office area until he found an unlocked office. He entered that office and from it took a notebook computer and several personal items. We suspect you know something about that and either stole the items yourself or helped someone else do it. If you are willing to tell us what happened, maybe we can work something out.”
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Note how much the interviewer told the subject about the crime and what is
known about it. Note also that it is accusatory and immediately puts the inter-
viewee on the offensive. It also provides the subject the false hope that if he comes clean he might be able to keep his job.
A better theme might go like this: “Tommy as you know, this organization has
had a long-standing policy regarding individual integrity and improper behavior in the workplace. It recently came to the attention of management here at this facility that that policy possibly had been violated. First, human resources was notified that things had gone missing from some of the executive offices. Then, several employees came forward and made similar complaints. One of these employees went so far
as to submit his complaint in writing. As such, management decided to undertake a formal investigation. Today I am going to share with you some of the things we learned during that investigation.”
Notice here that the interviewer does not play all of his cards. He carefully
lays the foundation for an investigation into suspected misconduct. Without being
accusatory, he then vaguely describes what he intends to discuss.
Tip: Once a theme is decided, the interviewer should prepare his notes and list the categories of issues he intends to pursue. He also should prepare his line of questioning.
Preparing one’s line of questioning is not the same as preparing a list of interview questions. Think of the line of questioning as a list of question categories.
Using the hypothetical situation above, the categories might include:
◾ Unauthorized building access after hours
◾ Violation of the organization’s policy regarding the use of access control cards
◾ Misappropriation of organizational property
◾ Misappropriation of personal property
◾ Employee ethics or integrity policy violations
Note that these are categories of issues the interviewer intends to discuss
with the subject. Instead of questions, they permit flexibility by allowing the interviewer to develop his questions based on the subject’s responses. This technique provides for a more fluid question and answer session creating a more
dynamic interview. Not using a list also prevents later challenges by a trier-of-fact demanding to know why the interviewer did not ask all of the questions he
intended (if, in fact, he did not). The failure of not asking all of one’s intended questions tends to support the allegation of interviewer bias and foster the image of unprofessionalism.
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4.2.1.6 Request for Representation
Another preparatory consideration is the potential of the interviewee requesting representation. Considerations regarding the request for representation include:
◾ Organizational policy and/or past practices
◾ The collective bargaining rights of the interviewee
◾ Confidentiality
◾ Practicality
◾ Location of the interview and availability of the requested representation
◾ Type of interview (administrative or investigatory)
◾ Safety
In 1975, the U.S. Supreme Court decided a case that has specific impact on interviews conducted in a unionized workplace. In that case, NLRB v. Weingarten, Inc., the court imposed upon unionized employers the requirement that they allow employees who have requested union representation to have a union representative present at any investigatory interview that the employee reasonably believes may result in disciplinary action against him.8 Importantly, the court did not impose the requirement that the employer notify the employee of this right. The decision also stipulated that the representative provided could not disrupt the process or otherwise interfere with the interview. However, it also allows the employer the option of declining the request for said representation. Under such a circumstance, the employer must then discontinue the interview. Surprisingly, this last feature has some very useful benefits. For example, suppose in a case involving multiple subjects, the first and most important (the most serious offender) begins his interview with the request for his shop steward (or other recognized union representative). Instead of fulfilling the request, the interviewer might tell the interviewee he has decided to discontinue the interview and does so. Management then places the interviewee on administrative leave with pay (defeating the subsequent claim the employee was disciplined for exercising his right to representation) and sends him home. As a consequence, neither the employee nor his union learn anything about the investigation, its methods, or its results. The interviewer then continues his process of selecting interviewees until one of them does not request a representative. That individual is interviewed and hopefully provides an admission and additional information regarding those who requested representation and were not interviewed. All the while, the union and those who were not interviewed are left in the dark.
It gets better. Suppose several employees don’t request representation and cooperate. With no one left to interview, the interviewer then recalls those who had earlier requested representation. Each is provided the requested representation and asked only one question: Did they commit the offense in question? If they deny it, they are now suspended without pay pending a decision regarding discipline by
management. Armed with the results of the investigation and the corroborative
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evidence provided by those who cooperated, the suspended employees are dis-
ciplined. If they grieve (a procedure involving the request for a formal hearing reviewing the case and resultant discipline) and an arbitration (the actual hearing) ensues, both the grievant and the union representative will be called to testify. The grievant will likely again deny guilt (claiming innocence) and the representative will be forced to testify that the grievant was provided representation, questioned, and told the interviewer he was innocent. Add to these circumstances an organization that has an ethics or integrity policy. Here’s the outcome:
◾ Those who cooperated are disciplined based on their admissions.
◾ Those who failed to cooperate are disciplined based on the results of the
investigation and the corroborative evidence provided by those who coop-
erated and their violation of the organization’s ethics or integrity policy using the union representative as witness to the violation (that of lying to the interviewer).
◾ The uncooperative grievants are unable to claim they were disciplined for
exercising their right to representation (as laid out above).
◾ The uncooperative grievants are unable to offer any union officials as wit-
nesses who can claim the interviews were coercive or otherwise improper
because no representative participated in the interviews in which an employee
was cooperative; in other words, none of them witnessed one of the actual
investigative interviews.
Another variation of this strategy is to discipline only those who failed to
make an admission. This strategy is best employed in situations in which all of the offenders committed similar or like offenses and the evidence against each
is roughly identical. Say, for example, we have 10 offenders and only half admit guilt. If the offense in question justified termination, the decision makers might terminate those who failed to make an admission and give those that did a second chance with a final letter of warning. This outcome would send a powerful message to the entire workforce that management honors truthfulness over dishon-
esty. It is my experience that the strategy also improves employee cooperation in future investigations. Additionally, the fact that those employees who requested representation were fired and that they did not return to work will be not lost on future offenders.
In nonunionized workplaces, employees have no such rights. Lacking the due
process rights discussed in Chapter 2, private sector employees have no right to representation during an investigative interview. This, however, does not give license to nonunionized employers to flatly deny the request for representation. Because many triers-of-fact do not understand the law as they should, many think the
request is not only reasonable, but that the failure to fulfill it is unlawful. As such, requests should be handled consistent with organizational policies, past practices, and precedent. That said, I am not an advocate of introducing outsiders to the inner
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workings of an internal investigation. Confidentiality, practicality, and the location of the interview and availability of the requested representation all play a role in the decision to honor the request. Moreover, outsiders, whoever they are, will not likely advise the interviewee to be candid or truthful. They are more likely to advise the subject to make no statement or admission against his interest. I will discuss in detail later how to address these situations tactfully and defensibly.
4.2.1.7 Selection and Use of Witnesse
s
I advocate the use of witnesses in my investigative interviews. Their use provides the benefit of corroborative testimony to enable the defeat of claims by the interviewee that he was mistreated, subjected to emotional or physical duress, inappropriately touched or contacted, lied to, or was made untrue promises. Similarly, the witness can later testify, if necessary, that the subject freely made an admission. In the event the interviewee later recants his admission and claims innocence, both the interviewer and witness can testify to the contrary. It allows the witness’s testimony and notes to corroborate the testimony of the interviewer and strengthen the credibility of an admission. A witness also can diminish the interviewee’s credibility if he chooses to attack the interviewer’s process.
In my cases, the witness is often an interviewer in training. This benefits both the trainee and the process. By definition, a witness is an observer. My witnesses do not actively participate in the interview. They do not speak unless spoken to by the interviewer. We do not play good cop, bad cop. The witness listens, observes, and quietly takes notes. The witness is instructed not to record everything that is said, instead they capture the interviewee’s responses. They do not describe the interviewee’s demeanor, tone, or physical expressions. They objectively capture only what he says. Rarely do I allow someone other than one of my team members to
be a witness. Occasionally, a customer will insist someone from human resources or a decision maker participate as “their” witness. This is a bad idea. First, experience shows that, in spite of being told not to question the interviewee, they almost always do. Secondly, if the interviewees believe that the witness is a decision maker, they will likely conclude that their attention and responses should be directed to them, not the interviewer. I also have found that in spite of my directions to the contrary, human resource folks and decision makers can say some pretty damaging things. Things such as telling the interviewee that his job is secure, he doesn’t have anything to worry about, the police know nothing (when, in fact, the police know everything and plans have been made to file a criminal complaint), tell the truth and everything will be fine.
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