Another group to consider are family members of the subject. The first and foremost considerations when deciding to interview a family member are privacy and confidentiality. The fact finder should not rely on the insistence the family member
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keep his or her interview or that which is discussed during it confidential. The family member could easily (and will most likely) compromise the investigation upon learning of it. The damage could be irreparable.
4. When should recommendations be provided?
The temptation to provide recommendations should be resisted. Instinctively, most fact finders conclude their process by providing recommendations to whom they report. Many very experienced investigators do this as a natural course of business.
However, by offering recommendations regarding discipline, the fact finder has the ability to influence the decision maker. In doing so, the fact finder places his credibility in jeopardy.
At first blush, this assertion is counterintuitive. A reasonable person could easily contend that by his very position, the fact finder is influential. The fact finder enjoys great autonomy and is able to take his investigation wherever he wishes and include or exclude whatever evidence he sees fit. Furthermore, it can be argued that of all of the interested parties, the fact finder is the most qualified to make recommendations, for it is he (and his team) who is closest to the facts. All of these propositions may be true. However, a proper investigation should have engineered safeguards into the process to ensure that the fact finder’s efforts are focused and reasonable. Here are a few of those safeguards:
a. The fact finder and project team are driven by established process, not personal agendas (review the first chapter for more details).
b. The Process of Investigation clearly defines the fact finder’s role and the limits of his authority.
c. From the onset, the investigative effort is driven by clearly articulated and well defined objectives.
d. The fact finder and the entire investigative effort are overseen by a designated higher authority (very possibly outside counsel). As such, the fact finder is responsible to him, not necessarily the decision maker.
e. The decision maker is bound to a standard of proof established before the investigation began.
These safeguards diminish the fact finder’s ability to pursue his own agenda, spin facts, and influence the decision maker. This construct may appear contrived, however. Absent some sort of structure and defined process, including the delega-tion of responsibilities, the acting parties may indeed be defenseless. Only with a well-conceived and defined process can the participants assert impartiality and fairness. Good looks and a bright smile won’t do it. Experienced employers will agree that, in the end, it is the process that will be challenged at a trial not the malfeasant employee who brought the suit.
Another problem arises when a fact finder makes recommendations. As the title suggests, the fact finder is one who seeks out and uncovers facts. His work product should be factual and grounded in objective determinations. Conversely,
124 ◾ Investigative Interviewing
recommendations are subjective. By combining objective findings with subjective recommendations, the fact finder’s work product can no longer be claimed as purely factual. In effect, it is tainted. Not intentionally, but nevertheless, it is tainted. Of course, the fact finder could clearly segregate his findings of fact from his recommendations, but when pressed while under oath, he might have to admit that the totality of his work product was not entirely factual. Albeit, with hesitation he would have to admit that he had been somewhat subjective and not all that he had provided the decision makers were facts. This damaging testimony could be cleaned up during cross-examination. However, regardless of the qualifiers added, it still does not play well. The point I am making is simple, there is no need or advantage in providing recommendations. When the fact finder
makes recommendations, it tends to diminish his credibility by questioning his impartiality.
Possibly the biggest problem recommendations create are instances when the recommendations are not acted upon or rejected. If the recommendations are not protected by an attorney work product privilege, they are subject to discovery.
Later, long after the investigation has been concluded, recommendations can come back to haunt an organization. Here is a good example.
Suppose the postinvestigation recommendations made by a fact finder included improvements to exterior lighting. Say the fact finder concluded that better lighting in the employee parking lot would reduce the chance of future vandalism to both the company property and employee vehicles. However, because of cost or other priorities, the improvements are never made. Then, sometime later, tragedy strikes. A female employee is brutally attacked in that same parking lot while leaving the facility late at night. She then sues alleging that the organization did not do enough to protect her. Her causes of action might include: inadequate security, negligent security, and employer negligence. During the discovery phase of the litigation the long-forgotten recommendations of our otherwise well-meaning fact finder are uncovered. Among his recommendations, of course, is the recommendation to improve the lighting in the very parking lot in which the attack took place. The report and its recommendations would support her allegations and further demonstrate that the attack was even foreseeable. Foreseeability would point directly to her employer’s negligence. For the theory propounds that the employer knew of the risk and ignored it. In doing so, it was negligent and thus liable.
When proven, negligence and foreseeability impart huge exposure to the employer.
The exposure is expanded further when the plaintiffs’ demands include compensatory and punitive damages. As the name suggests, punitive damages are awarded to punish the defendant. It is not uncommon that punitive damages are awarded in large multiples of the compensatory damages. Making the matter even more painful, some states, such as California, prohibit insurance companies from paying punitive damages. In such states, these damages are paid directly by the defendant. See Appendix 8 for an example of properly crafted recommendations.
The Investigative Interview Method ◾ 125
Trap: Allowing, asking, or insisting the fact finder make recommendations. The fact finder should resist the temptation to make recommendations. The tradition of providing the decision maker recommendations is unnecessary and tends to diminish the credibility of the fact finder and increases the employer’s liability.
5. Should the interviewer use props during his interview?
The answer is no. Interview props include stacks of documents or files, recording devices on the interviewer’s desk, a computer screen visible to the interviewee with his or her image displayed or other items marked or appearing to be evidence.
Some interview methodologists encourage the use of props and others are silent on the issue. Because of the potential for administrative or legal challenges to both the process and its outcome, props should not be used. If challenged, the interviewer will have to produce them and explain their purpose to the trier-of-fact. He ultimately will have to admit they were used to deceive the interviewee by creating the appearance that he had more evidence than he really had. The admission of deception will bring new light on the entire investigative interview process and the two commitments regarding honesty the interviewer imposed on the interviewee.
Do not use props.
6. How does one go about recovering physical evidence from the interviewee?
Carefully. If the interviewee offers or admits to having evidence in his possession, the interviewer should not attempt to recover it until the interview is entirely completed. Doing otherwise breaks momentum and allows the interviewee time
to ponder his commitment to cooperate. I have made this mistake and it was dev-astating. During the Oral phase of the interview, the interviewer should ask the interviewee if he is willing to remand the evidence he disclosed in his possession. If he
agrees, allow him to describe it in detail and obtain his commitment to surrender it at a time and location to be determined at a later date. From an evidentiary perspective, even if it is never surrendered, the admission of its existence (and full description of it) is almost as valuable as the physical evidence itself. Prior to the disbursement of disciplinary action contact the interviewee and arrange recovery of the evidence. At the place it is exchanged, properly inventory it, photograph it, and provide the subject a receipt after he has signed it.
7. What if the interviewee insists on providing a written statement after his
interview?
Discourage it. Tell the interviewee that the process requires a statement be provided during the interview. If the subject refuses and insists he provide it later, the interviewer may have no choice, but to accept it. However, rarely will they provide it and, if they do, it will likely have little or no value. What’s more, it could possibly contain information or alleged evidence suggesting the subject’s innocence. It also could contain allegations of interviewer and/or witness misconduct
126 ◾ Investigative Interviewing
or worse. If the subject refuses to provide a written statement during the interview for whatever reason, the interviewer should write an addendum memorializing the interview and what took place during it as soon as the interview is finished.
8. Can an investigative interview be conducted electronically?
Yes. The need to conduct electronic interviews (those using the telephone or video conferencing) is growing. Today, more and more interviews, both administrative and investigatory, are being done electronical y. The fol owing are several issues the interviewer should contemplate before initiating a telephone interview of any type:
a. How will confidentialities be assured?
b. How will the interviewer know if the subject or others are listening in on the interview?
c. Should the interviewer record the conversation?
d. Should the interviewee be notified that the interview is being recorded?
e. How does the interviewer deal with not being able to see the interviewee and his body language?
f. How does the interviewer deal with getting a written statement from the interviewee?
g. How should the interviewer respond if the interviewee wants to prepare a statement after the interview and email it to the interviewer?
Each interviewer will have to address these questions based on the circumstances and challenges he faces. Though electronic interviews are often economical and convenient, they are not typically practical. Whenever possible, investigative interviews should be conducted in person.
9. Are there any other safety issues to consider?
Yes. Safety should be everyone’s priority. The safety of all participants in the investigative interview process should be considered. Though I have never had an incident during or following one of my investigative interviews, I know of others who have. Safety begins with assessing and anticipating the risks. Once identified, the fact finder should engineer and install mitigating safeguards and precautions around those risks. When in doubt, err on the side of safety. If the risk is too great and cannot be adequately mitigated, do not conduct the interview.
Endnotes
1. Fred Inbau, John E. Reid, Joseph Buckley, and Brian Jayne, Criminal Interrogations and Confessions, 4th ed. (Gaithersburg, MD: Aspen Publishers, Inc., 2001), 5.
2. Ibid., 4.
3. Ibid., 6, 8.
The Investigative Interview Method ◾ 127
4. In Cotran v. Rollins Hudig Hall International, Inc., 1998 Cal. LEXIS 1 (January 5, 1998), the California Supreme Court joined the majority of other jurisdictions in holding that good cause existed for terminating an employee for misconduct if an employer had a reasonable and good faith belief that the employee engaged in misconduct. It was ruled that the employer does not have to convince the court or jury that the employee, in fact, committed the misconduct, only that the employer honestly believed that the employee engaged in misconduct based upon substantial evidence obtained through an adequate investigation that included a fair opportunity for the employee to respond to the charges. The court further defined the term good cause as a “reasoned conclusion … supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” So, while the employees of employers in the private sector do not enjoy constitutionally protected due process rights, the California Supreme Court holds that an accused employee indeed has the right to respond.
5. There are exceptions. Employers whose employees are members of a collective bargaining unit (members of a recognized employee union) are often required to meet a higher standard of proof.
6. Nina Moore, Nonverbal Communication: Studies and Applications (New York: Oxford University Press, 2010).
7. Edward T. Hall, The Hidden Dimension (New York: Anchor Books, 1990).
8.
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), was a case decided by the U.S.
Supreme Court that ruled that employees in unionized workplaces have the right
under the National Labor Relations Act to the presence of a union representative during any management inquiry that the employee reasonably believes may result
in discipline. The decision, however, did not stipulate that the employer (or his agent) must 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.
9. ASIS International, Workplace Violence Prevention and Intervention (ASIS/SHRM
WVPI.1-2011, 2011).
10. J. S. Cawood, and M. H. Corcoran, Violence Assessment and Intervention: The Practitioner’s Handbook, 2nd ed. (Boca Raton, FL: CRC Press, 2008).
Chapter 5
Administrative
Interviews and
Communicating
Our Results
Key learning points:
1.
Administrative interviews are designed for the purpose of gathering informa-
tion. Generally they are reserved for those who are not materially involved in
the matter under investigation, but are tangentially associated with it.
2.
Before conducting administrative interviews, determine who likely has the information you seek and, among them, who is most likely to provide it. Remember,
even innocent people will not always be cooperative or tell the truth.
3.
All interview notes should be retained. Do not destroy notes, documents,
evidence, or case files until the matter has been completely adjudicated and
all possible opportunities of appeal have expired.
4.
If an interviewee refuses to provide a statement or sign one prepared for them, they should be asked why. Often their concerns can easily be addressed and
an otherwise hesitant interviewee will become agreeable.
5.
The lay witness may express an opinion on matters of common observation
where an opinion is the only logical way to convey the information. These
opinions are permitted only concerning subjects of which the average person
has considerable experience and knowledge.
129
130 ◾ Investigative Interviewing
6.
Spontaneous declarations ( res gestae) are declarations that are spontaneous utterances or statements, made in response to some sudden and shocking
event, such as an accident or horrific crime.
7.
Before testifying, the investigator should be aware of the probable line of
questioning he will face and how all of the evidence he has gathered will be
introduced and used at the trial.
“Though administrative interviews are for the purpose of gathering infor-
mation, the o
ne asking the questions should still be the smartest guy in the room.”
E. F. Ferraro
5.1 Introduction
For the purposes of workplace investigations in the private sector, there are two types of interviews. The first and most basic is the administrative interview.
Though we examined investigative interviews (the second type of interviews) in
the prior chapter, administrative interviews, like the Reid Technique® interview, typically occur before any investigative interviews take place. I chose to present these interview types out of order because I have found that my students often fail to appreciate the importance of administrative interviews and to understand how investigative interviews use the information they potentially yield. Moreover, the format and structure of these two interview types are very similar. If one learns the intricacies of investigative interviewing, understanding and conducting administrative interviewing should be a snap.
5.2 Purpose of Administrative Interviews
The purpose of administrative interviews is to gather information otherwise not available by other means. Administrative interviews are a method of investigation and provide insight into a process, situation, or event. Generally, administrative interviews are casual, yet professional. As with all workplace interviews, the subject should be treated with respect and dignity. The tone should be polite and conversational. Because the subject is asked to cooperate and volunteer information, the interviewer should not fire questions at the interviewee. Instead, the interviewer should ask open-ended questions and allow the subject to provide
explanatory responses in a conversational manner. The interviewee should explain more than just offer answers. The interviewer should be seeking insight as well as facts.
Investigative Interviewing: Psychology, Method and Practice Page 21
