Investigative Interviewing: Psychology, Method and Practice Read online

  solutions to old problems and challenges. With the encouragement and assistance of my students and those with whom I have worked and studied, I will reveal for you new ideas and some of the most sophisticated approaches and strategies in

  interviewing known today. I think you will find the result both refreshing and very possibly inspiring.

  Whether you are a professional licensed investigator or someone tasked by

  your employer to conduct an investigative interview, this work will shine new light on your techniques and approach. It also will serve to provide executives, human resource professionals, and the lawyers who represent them with new insights into this powerful investigative tool.

  The reader should know that I am more than a writer, I am a practitioner. The

  knowledge I offer in this book goes far beyond what is available in the current literature or that which is offered on the seminar circuit. I have drawn upon my years of practical experience and that of my colleagues to craft a work that dispels xvii

  xviii ◾ Preface

  the myths and troublesome theories promulgated by some of my predecessors. My

  intent is to provide you, the reader, with the backstory behind the methodology, rationale, and subtle practices that have made thousands of fact finders like you successful interviewers. But, most importantly, I want you to become the best interviewer possible. I also want to make your learning both rewarding and fun. To that end I have included stories, humorous experiences, and many simple, but powerful insights. I also have added a host of checklists and visuals to help hold your attention and make the content more useful and actionable.

  Inside this book you will find as well that I have provided an exhaustive table of contents, innumerable references, and expansive appendices. Another feature to help capture my salient points and simplify the learning process is my use of Tips and Traps.

  Tip: Read my Tips and Traps to get the most out of this book. If you read nothing else, these little gems will inform as well as inspire.

  Acknowledgments

  It seems that no endeavor of any importance or value is possible without the

  help of others. This work is no exception. One such person is my longtime

  friend and counselor, Bill C. Berger, Esq. Bill is an employment lawyer with the prestigious firm Brownstein Hyatt Farber Schreck, in Denver, Colorado. Bill’s

  practice emphasizes matters including both preventative counseling and litiga-

  tion. His contribution to Chapter 7, Legal Challenges and Litigation Avoidance, was invaluable.

  Of the many who helped form my thoughts, ideas, and methods, the least vis-

  ible and most influential were the professionals and thought leaders who plowed this space before me. Though I have met few of them, they include Fred E. Inbau, John E. Reid, Joseph P. Buckley, Brian C. Jayne, Frank A. Colaprete, James S.

  Cawood, D. Glenn Foster, Paul Babiak, Robert Hare, Martha Stout, Nathan J.

  Gordon, William L. Fleisher, Douglas E. Wicklander, David E. Zulawski, and

  many, many others. Their willingness to share and memorialize their ideas in writing is a testament to their courage and professionalism. I, as well as every reader of this book, owe them thanks.

  I also wish to thank my acquisition editor, Mark Listewnik at CRC Press/

  Taylor & Francis Group. Without his persistence and good spirits, your hands at this moment might be empty.

  And, finally, I want to thank my loving wife, Shelley. She is my princess.

  xix

  About the Author

  Eugene F. Ferraro, CPP, CFE, PCI,

  SPHR, is currently the chief ethics officer

  of Convercent, Inc., Denver, Colorado. He

  has been involved in the study of organiza-

  tional culture, workplace misconduct, and

  compliance for over 32 years. He is a prolific

  author and frequently speaks and trains on

  the topics of complex corporate investiga-

  tions, culture management, and unethical

  behavior in the workplace. He is board

  certified in both security management and

  human resources management (CPP and

  SPHR designations, respectively). He has

  been a member of ASIS (American Society

  for Information Science) International

  since 1987 and a commissioner on the ASIS

  Standards and Guidelines Commission. He is also a member of the Association

  of Certified Fraud Examiners and is a certified fraud examiner (CFE designation) as well as a professional certified investigator (PCI designation).

  Ferraro is a former military pilot, intelligence officer, and a graduate of the Naval Justice School. He is a frequent book critic for Security Management maga-zine and is the author of Investigations in the Workplace, 2nd ed. (Taylor & Francis Group, 2012), which is a textbook used by universities and other institutions of higher learning in the United States and abroad.

  Those wishing to reach him may do so via email: [email protected].

  xxi

  Introduction

  Imagine, if you can, not having a conscience—none at all. Imagine a life absent the feelings of guilt and remorse, no limiting sense of concern for others, their safety, or their boundaries. Imagine having no capacity for shame, sorrow, or sense of

  responsibility; imagine instead a life filled with deceit, deception, and the ability to conceal one’s innermost thoughts and desires. Distinctly, you are free of all internal restraints, unhampered by the burdens of spiritual beliefs, cultural morals, or the rule of law. You are carelessly speeding through life with no guardrails, intentionally colliding with unsuspecting victims, leaving behind only the wreckage of sorrow, disappointment, and economic ruin.

  Now place our imaginary monster into the turbulent culture that is ours. Al

  around him he is encouraged and liberated by sinking morals and flagging values. Like him, many of those he knows and associates with regard the acceptance of personal responsibility, honest discourse, and respect for the rule of law as a matter of choice.

  He is in a society where distain for spiritual values, the embrace of political correct-ness, social justice, and, for some, even narcissism have become compel ing ideologies.

  Now imagine you are the employer, co-worker, or business partner of such a

  person. Imagine you are not only his colleague, but you or your organization are his target. How will you recognize this individual, confine his selfishness and greed, and safely extricate yourself before he destroys you and all that is important you?

  Confronted by such an individual, to whom would you turn and where would

  you hide? For the modern investigative interviewer, there can be no such questions, for it is he whom our society often turns to to seek resolution.

  Indeed, on the heels of most internal workplace investigations in the private

  sector the fact finder or his designate must sit and confront the malfeasant. That event is more than a meeting, it is an investigative interview. To it the participating parties bring objectives, information, and emotions. They also bring bias, personal experience, survival skills, and sometimes, like our imaginary monster, one of them brings with him his psychopathy. For that reason, among others, this book will take the reader on a fascinating journey into the mind of the malevolent and malfeasant.

  The readers will learn how to identify and stop those who intend to harm them

  and/or their organization and obtain from them an admission of guilt. In order

  xxiii

  xxiv ◾ Introduction

  to accomplish that feat, a proper investigation must precede it. That investigation must be thorough and complete. For that to happen, the investigation must itself have process. That process is called the Process of Investigation™.*

  Investigations using the Process of Investigation are complex undertakings.

  They are ti
me consuming and fraught with enormous potential for legal liability and even danger. When done properly, they combine an intricate mixture of skill, planning, experience, and luck. Those who attempt them without a clear understanding of their fundamentals are recklessly naïve. An improperly conducted

  workplace investigation can be ruinous and destroy the careers of everyone who

  touches it. Few workplace activities invoke so much risk and, at the same time, so much opportunity.

  An effective and proper investigation is the foundation on which all (regard-

  less of the offender’s motive, method, or psychopathy) successful investigative interviews rest. For our purposes, investigative interviews are interviews that are reserved for those we know, or have a strong reason to believe, have committed

  the offense in question. These interviews are highly structured and carefully choreographed. Generally, they are not fact finding in nature. Instead they rely on the facts generated during the investigation that preceded them. They also are nonaccusatory. Surprisingly, the primary purpose of an investigatory interview is simply to obtain an admission.

  Tip: Admissions are simple statements of guilt. Admissions are unlike confessions in that they need not contain all of the elements of the crime.

  In the private sector, it is on properly obtained admissions that disciplinary

  and/or corrective action is most often based. Thus, properly conducted investigative interviews are the most powerful tools available to the modern workplace fact finder and his employer.

  Trap: Because of their usefulness, the fact finder must not instinctively default to investigative interviewing until the investigation has progressed to the point that his investigation is properly completed and interviews are appropriate.

  * The term Process of Investigation is a trademark belonging to the author. Its use for any purpose is strictly prohibited without prior written permission.

  Introduction ◾ xxv

  Investigative interviews are valuable in other ways as well. When done correctly they enable us to:

  ◾ fulfill many of our due process obligations

  ◾ obtain the other side of the story

  ◾ uncover extenuating and mitigating circumstances

  ◾ learn who else might be involved and why

  ◾ uncover the means by which a reoccurrence of the offense might be prevented

  Thus, investigative interviews are useful and powerful tools. However, to appreciate their enormous power and implement them properly and, might I add, consistently, the proper place to begin is with examining the intricacies of the Process of Investigation. Let’s get started.

  Chapter 1

  The Process of

  Investigation

  Key learning points:

  1. An investigation is best defined as the logical and intelligent collection of information through inquiry and examination for the purpose of developing

  evidence so as to solve a problem.

  2. Process is the principal driver allowing consistent quality and scalability of one’s workplace investigations.

  3. Most fact finders have only six methods of investigation available to them when conducting a workplace investigation. Among these the investigative

  interview is the most powerful.

  4. One of the most common mistakes made by fact finders is that they over-investigate. That is, they spend more time and resources than is often

  necessary.

  5. Employers in the private sector generally need only to prove that they conducted a good-faith investigation and, from it, come to a reasonable conclu-

  sion in order to sustain the decision to discipline an employee.

  6. The foundation for successful investigative interviews is a quality investigation.

  “If obtaining an admission of guilt is your destination, your journey must

  begin with a proper investigation.”

  E. F. Ferraro

  1

  2 ◾ Investigative Interviewing

  1.1 The Genesis of Process

  Large or small, organizations of all types routinely conduct internal workplace investigations. Though the objectives, and certainly the scope of these undertakings, have varied widely, their principal purpose has been that of objective fact finding. We call that individual the fact finder. To be effective, he must be fair, impartial, thorough, and certainly purposeful. Then, to fulfill the varied objectives of the assigned investigation, the fact finder must have a process. Remarkably, however, most fact finders, regardless of their level of experience, have little or no process. Their approaches are as varied as their results. Lacking an effective process, fact finders often spend more time and resources than necessary, produce inconsistent results, and create unnecessary liabilities for those they serve. No investigation, regardless of its objectives or scope, can be successful if not properly engineered and driven by process.

  This observation became apparent to me almost 30 years ago. Having com-

  pleted my military obligation, I entered the private sector wide-eyed and naïve.

  Seeking employment, I happened upon a private investigator. His name was Tracy

  Schnelker (1918–1992). Los Angeles, California-based, his agency was quaintly

  named Hollywood Detectives. With nothing but my military justice experience, he thrust me into one investigation after another. With no training or supervision, he tasked me with the responsibility of finding information. Other than his billing and reporting procedures, his organization was completely devoid of processes. Some years later I joined the prestigious investigative firm of Krout and Schneider, Inc., also headquartered in Los Angeles. In spite of its enormous success, I found it operated much the same.

  At Krout and Schneider, I advanced rapidly. In part, my advancement and suc-

  cess was based on having the desire to grow the business. In order to do that, I realized the ability to scale its operations was imperative. However, to do that I needed tools. The tool I chose were processes—carefully engineered activities that had both structure and purpose. Among the many I developed, the most enduring was the

  Process of Investigation™.

  This process holds that, in order for the results of a workplace investigation to be useful, it must have meaningful and well-defined objectives, be properly and lawfully executed, be fair and impartial, and the results accurately documented and communicated. In order for these investigations to be efficient, they must unfold incrementally and progressively in distinct phases. Each progressive phase is engineered to build on the phase that preceded it. Collectively, these phases are called the Seven Phases of Investigation. They include:

  1. Assessment

  2. Preparation and planning

  3. Information gathering and fact finding

  4. Verification and analysis

  The Process of Investigation ◾ 3

  5. Decision making

  6. Disbursement of disciplinary and/or corrective action

  7. Prevention and education

  I also determined that due to the lack of resources and experience, most fact

  finders transfix on the third phase, that of information gathering and fact finding. Unwittingly, they conclude their investigation after amassing an impressive collection of related facts, evidence, and information. Though these elements are obviously important, what was overlooked denied those to whom they reported

  a complete result and a thorough understanding of the very matter that precipi-

  tated the effort. Thus, by imposing process to otherwise disorganized, but seemingly important, activities, the fact finder could create the structure necessary to be uniquely effective. My process allowed the private sector fact finder to transcend the unsophisticated and often tarnished image of corporate gumshoe and elevated him to the professional standing of corporate investigator; better yet, professional investigator. A new way of conducting investigations was born.

  1.2 Process of Investigation


  Like most effective processes, the Process of Investigation also should produce measurable results. While the output is often measured by the fact finder’s customer*

  in terms of the actionable evidence he accumulates, the first and most immediate, ought to be return on investment (ROI). The properly engineered and executed

  investigation often should produce tangible, measurable results, such as the recovery of stolen property or money (generally termed as assets), the termination or discipline of dishonest employees or vendors, and, of course, successful prosecution. Also possible are civil recovery, restitution, damage awards, and successful insurance claims.

  The process, however, goes beyond this and can even be engineered to allow

  the employer to recover the actual cost of the investigation from the transgressor.

  Unique also is the process’s suitability to generate statistical results the fact finder can use over time to measure effectiveness and ROI. Without process and structure, the fact finder has no means to measure results or show value to the customer.

  The fact finder also must think in terms of process in order to be consistently successful. Long gone are the days when anyone could conduct a workplace investigation. Sloppy techniques, careless fact gathering, and bending the law are no

  * The reader will note that I will use the word customer frequently. When doing so, I am referring to the person or persons to whom the fact finder reports. When the fact finder is in-house, that entity is typically his employer. It also may be a particular individual or group within the organization serving as the decision makers. For fact finders who are not employees of the customer, this entity is then likely to be their paying client.

  4 ◾ Investigative Interviewing

  longer permissible in our litigious society. Neither the public nor our courts will tolerate the practices that just several years ago were considered industry standards.

  Today the fact finder cannot get away with unethical or sloppy investigations, and, if he tries, he will land himself and his customer on the wrong end of a lawsuit.

  The last and possibly the least considered benefit of using an investigative process is scalability. Without the means to consistently duplicate processes, one is unable to reliably predict outcomes. This concept of repetitive processes and predictable outcomes is fundamental to scaling every industrial activity. Modern