Given the complexities of the Act and the negligible utility of the polygraph, I have used it fewer than six times in my 29-year career. Although, some of my colleagues swear by it and use it frequently, I think it is more trouble than it is worth.
However, there is one way it can be used very effectively and with very few complications. Here is how.
Suppose the matter under investigation is the unexplained disappearance of
several hundred dollars from the company safe. Also, suppose our preliminary
investigation has revealed that five employees had access to the safe during the time in question. However, for various compelling reasons, four of the five can be eliminated as suspects and two of them have credible reasons to suspect the fifth. The fifth employee for additional reasons is also our primary suspect. Instead of proposing our suspect submit to a polygraph exam, ask the other four to do so. We explain that they are not suspects, but that we want to affirm the suspicions they have regarding the actual subject and exonerate them if possible. As would be expected, all four provide nondeceptive responses with two confirming their original suspicions. We then interview our subject. Using the findings of our investigation and the results of the polygraph tests, the subject may have little choice but to admit (assuming, of course, he, in fact, is guilty) to the theft. The psychological burden of guilt and knowing the other four “passed” exams will likely be too much for him and he will be unable to maintain his innocence. However, even if he does, our
hypothetical employer can still easily justify the discipline of him. The employer has met a good faith investigation/reasonable conclusion standard, by clearing four of the five individuals who had access to the safe. Confident that no one else had access, it is now obvious the one who was not polygraphed is the guilty party.
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Under the circumstances, as unfair he may think his employer’s process was,
failing to polygraph someone is not a recognized cause of action. Thus, the angry employee who desired to sue would be left with asserting that his employer did not meet the standard of a good faith investigation/reasonable conclusion and the polygraph exams it had administered were unreliable. The employee, however, before
getting an attorney, probably demanded that he, too, be allowed to take a poly-
graph to prove his innocence; creating the ultimate dilemma for himself—why he
once thought it reliable and demanded to sit for an exam and then later assert it to be unreliable when administered on other people.
Tip: The polygraph should never be offered to those we suspect of guilt; only to those we are sure of their innocence. If we terminate parties that refuse to take a polygraph when our investigation points to their guilt, they may claim they were disciplined for unlawful reasons, while an employer’s decision not to administer a polygraph is not a recognized cause of action.
The polygraph’s accuracy and determinations made by the examiner can be
influenced by the emotional state of the examiner, the examinee’s psychological and medical state, and the contemporaneous use of drugs or alcohol by the examinee.
Because of these complexities and others surrounding the use of the polygraph, the investigative team should seek the advice of competent employment law counsel
before deciding to use the polygraph.
6.7.2 Voice Stress Analyzer
The subject of voice stress analysis as a tool to detect deception has been the subject of study for years. The National Institute for Truth Verification claims to be the manufacturer and sole source of the Computer Voice Stress Analyzer.13 The CVSA
is only sold to law enforcement agencies and, according to the Institute, more than 1,200 public agencies use the CVSA. However, the use of this technology has
been limited in the private sector. The EPPA and the state laws that mirror it place significant restrictions on lie detector “or similar” tests.14 Accordingly, employers and private sector fact finders should use caution when considering the use of any deception detection technology.
It should be remembered, that while seemingly powerful technologies might
exist, there are no silver bullets for those undertaking a workplace investigation.
Extreme care should be used when deciding if a new or unproven technology
should be utilized. Do your homework and seek the advice of counsel before deciding your final course of action.
Process of Overcoming Objections and Denials ◾ 177
6.7.3 Kinesics
Kinesics is the interpretation of body language, such as facial expressions and gestures or more formally, nonverbal behavior related to movement, either of
any part of the body or the body as a whole. The term was first used in 1952 by Ray Birdwhistell, an anthropologist who wished to study how people communicate through posture, gesture, stance, and movement. Part of Birdwhistell’s
work involved filming people in social situations and analyzing them to show
different levels of communication not clearly seen otherwise. The study was
joined by several other anthropologists, including Margaret Mead and Gregory
Bateson. Drawing heavily on descriptive linguistics, Birdwhistell argued that
all movements of the body have meaning (i.e., are not accidental), and that
these nonverbal forms of language (or paralanguage) have a grammar that can
be analyzed in similar terms to spoken language. Thus, a “kineme” is “similar
to a phoneme because it consists of a group of movements that are not identi-
cal, but which may be used interchangeably without affecting social mean-
ing.”15 Today it is widely held that kinesics can and should be used during
most investigative interviews.
My first exposure to this fascinating subject occurred while attending a training seminar offered by D. Glenn Foster over 25 years ago. Foster offered that, by recognizing behavior and interpreting body language, one could detect deception and emotion. He demonstrated that both verbal and nonverbal communications could
be used by investigative interviewers to obtain information from an interviewee who was reluctant to reveal it. Today Foster offers one-, two-, and three-day seminars teaching his methodology.16
Before we go farther and examine how kinesics can be used, let’s first examine
the types of lies the investigative interviewer might typically encounter.
6.7.3.1 Types of Lies
Given adequate time to prepare, a guilty subject will sometimes enter an interview with the intention of withholding the truth. This is not necessarily lying, but it still obstructs the opportunity to obtain an admission. During the interview, the mindset of the interviewee in this state undergoes several stages before voluntarily providing an admission. Those stages typically include:
◾ Defiance
◾ Neutrality
◾ Acceptance
◾ Cooperation
◾ Admission
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During the defiance stage, the interviewee may be inclined to deceive the interviewer and withhold information. A common tool to accomplish this is use of lies.
It is generally agreed that there are five types of lies:
◾ The Simple Denial is simple and to the point—“I didn’t do it.”
◾ The Lie of Omission is the most common lie used by deceptive individuals.
To use it, the liar offers only the facts and details that are not incriminating, while withholding those which are just that.
◾ The Fabrication is a lie that contains elements that have been fabricated. It requires inventiveness and a good memory in order to remain consistent.
◾ The Minimization is a lie that contains a small admission in the hopes the fact finder will accept it and discontinue his questioning.
◾ The Exaggeration is a lie that uses the truth as a foundation, then exagg
erates some aspects in order to deceive the fact finder.
6.7.3.2 Body Language of the Guilty
As these lies are employed, the interviewee will often provide indications of his intention to deceive. Both his words and body language betray him. Although we examined a few of these earlier in this chapter, here is a complete list of those I think are most common:
◾ Using language to mask the truth, such as “to tell the truth” or “honestly speaking”
◾ A selective memory
◾ The inability to recall even nonincriminating facts or circumstances
◾ Offering useless and irrelevant comments
◾ Inconsistent, evasive responses
◾ Avoiding eye contact or appearing to be visually looking for an answer
◾ Body language and mannerisms that are inconsistent with one who is telling
the truth
Of these, the last two are non-verbal. Birdwhistell would call them kinemes.
Attempting to withhold the truth, the interviewee might appear overly anxious,
unconcerned, defensive, evasive, and even angry or arrogant. Communicating both verbally and nonverbally, the interviewee is sharing information with the interviewer. The correlation between these forms of communication might include:
◾ Overly anxious: Tapping feet, clicking teeth, bobbing knee, constantly look-
ing at clock
◾ Unconcerned: The lint-picker, whistling, rolling eyes, grooming self, inspecting nails
◾ Defensive: Demanding proof, evidence, or the identity of witnesses
◾ Evasive: Memory loss, vague, aloof
◾ Guarded: Uses qualified answers, suspicious, questions fact finder’s intentions
Process of Overcoming Objections and Denials ◾ 179
Figure 6.5 Contemplative.
◾ Complaining: Room too hot, too cold, thirsty, body pain, headache
◾ Angry or arrogant: In your face, disrespectful, argumentative
Further messaging, the interviewee squirms, crosses his legs or arms tightly, covers his mouth, or tugs at his ears. Figure 6.5 to Figure 6.13 illustrate some these expressions.
While these images are of an actor and the poses are somewhat exaggerated for
illustrative purposes, it is easy to understand the emotions of the subject. When
180 ◾ Investigative Interviewing
Figure 6.6 Closed.
these visually expressive emotions are responses to specific questions, the skilled interviewer will be able to detect not only the intent to deceive but also the mindset of the interviewee and the stage that he is in. You may find some of these humorous, such as the “lint-picker.” Here the subject is more concerned with the lint clinging to his socks than questions posed by the interviewer. In the image labeled “Fetal,”
we see the interviewee curled on the floor in a tight fetal ball. Though amusing, I included this image because more than once in my career, an interviewee did just this. Do you suppose he was guilty of the offense in question?
Process of Overcoming Objections and Denials ◾ 181
Figure 6.7 Uninterested.
In addition to the more obvious expressions using his body, the subject will
sometimes offer lesser visual cues without even recognizing them. Professional
gamblers call these cues tells. Here are few of the more common ones:
◾ Looking away when asked an incriminating question
◾ Looking away when lying or withholding the truth
◾ Harshly staring at an object or nothingness
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Figure 6.8 Anxious.
◾ Impulsively pursing his lips when asked a difficult or incriminating question
◾ Cringing or inhaling through his teeth before answering an incriminat-
ing question
◾ Putting fingers to his forehead as if in deep thought before uttering an untruth
◾ Templing or assuming other dominant body language
◾ Shaking his head no, before the question is fully asked
Process of Overcoming Objections and Denials ◾ 183
Figure 6.9 Lint-picking.
6.7.3.3 Body Language of the Interviewer
Just as a good interviewer observes his subject, the exceptional interviewer knows the interviewee is observing him. And, as such, he is conscious of his every movement and mannerism. An interviewer who appears nervous is nervous, an inter-
viewer who appears unsure of himself or his facts will appear unsure and an
interviewer, who is clueless, will appear both clueless and pathetic. The best and most successful interviewers appear confident, relaxed, professional, and at ease
184 ◾ Investigative Interviewing
Figure 6.10 Templing.
with themselves and the interviewee. They are not easily intimidated or thrown
off balance. They come to the interview prepared and are able to demonstrate it.
However this confidence should not be confused with arrogance. No one likes arrogance and an interviewer who is arrogant will be able to empathize with his subject and the subject will know it.
I also use something called mirroring. I will sometimes emulate the body language or mannerism of the interviewee. If he is templing, I, too, will temple. If he notices it, I will casually change my body language to something more compliant.
Process of Overcoming Objections and Denials ◾ 185
Figure 6.11 Surrendering.
Often the interviewee will then unconsciously mirror me. The effect alters not only his posture, but his mindset as well. I use this technique frequently when an interviewee is hesitant to commit to a written statement. In such circumstances, I will not question his hesitation or even look at him. I will simply begin filling out my written statement checklist in full view of him, with my form only inches from the blank statement form I presented him. Often my writing seems to give him permission to write and he does so. Similarly, if for some reason I want him to stop writing, I might put my pen down and cross my arms. Subtly this signals something is wrong or I am somehow dissatisfied. The behavior should cause him to stop writing and ask me “what’s wrong?”
Another way I use my body language to influence an interviewee is with head
movements. Try this, shake your head as if in agreement with me while saying
“no.” Now shake your head as if disagreeing with me and say “yes.” If you simply did what I told you, without thinking about it, you likely found this exercise difficult. Most interviewees will also. So, when asking a question of which you want an affirmative answer, nod your head as if you are in agreement. Do the opposite if you want the interviewee to disagree with your statement.
Tip: Exceptional interviewers are as aware of their body language as they are aware of their interviewee’s.
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Figure 6.12 Looking for answers.
6.7.4 Statement Analysis
First a disclosure. I do not use this technology (a method, to be more precise) nor have I ever attempted to use it. I share this with you so that you know I am not attempting to influence your decision to use it or learn more about it. Many find it extremely valuable and rely on it extensively. I do not because it is largely incompat-ible with the investigative interview method. First a little insight.
Process of Overcoming Objections and Denials ◾ 187
Figure 6.13 Fetal.
Statement analysis, also called investigative discourse analysis, and scientific content analysis (SCAN) is a technique for analyzing the words people use. Proponents claim this technique can be used to detect concealed information, missing information, and whether the information that person has provided is true or false.17
Related to statement analysis is a different technique for analyzing the words people use called statement validity assessment, which uses something called criteria-based content analysis. According to Wikipedia, CBCA has been
accepted as evidence in courts in Germany as early as 1954. Statement analysis involves the fact finder
188 ◾ Investigative Interviewing
searching for linguistic cues and gaps in a subject’s testimony or preliminary statements. Ideally, the technique guides the fact finder to ask follow-up questions to uncover discrepancies and inconsistencies. These irregularities are then used as the basis for more targeted questions.
Creator of SCAN, Avinoam Sapir gives the example of someone saying, “I
counted the money, put the bag on the counter, and proceeded to go home.” Sapir says the statement was literally true: “He counted the money (when you steal you want to know how much you are stealing), and then the subject put the bag on the counter. The subject didn’t say that he put the money back in the bag after counting it, because he didn’t; he left the empty bag on the counter and walked away with the money.” Sapir says that a fundamental principle of statement analysis is that “denying guilt is not the same as denying the act. When one says ‘I am not guilty’ or ‘I am innocent,’ they are not denying the act, they are only denying guilt.” Sapir claims that it is almost impossible for a guilty person to say, “I didn’t do it.” He asserts that guilty people tend to speak in even greater circumlocutions by saying things like: “I had nothing to do with it” or “I am not involved in that.”18
SCAN’s most ardent supporters are those in law enforcement. His proponents
say statement analysis has proven highly effective as a police interrogation technique. I do not doubt this as many of my law enforcement students rave about its usefulness and reliability. However, if you have studied Chapter 4, The Investigative Interview Method (I2M), and understand its function and intricacies, you know
it offers little room to obtain a preinvestigation statement from a suspected wrongdoer. I2M’s success is based on a proper and thorough investigation. Only after the investigation is complete do investigative interviews take place. That said, I encourage the reader to explore statement analysis further if they find the concept intriguing. Who knows, you may find it a better method than mine.
Investigative Interviewing: Psychology, Method and Practice Page 28
