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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.

  Evidence

  43

  [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.

  44

  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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  45

  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

  46

  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

  Evidence

  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.