Investigative Interviewing: Psychology, Method and Practice Read online

  manufacturing, distributing, franchising, and even marketing largely depend on

  this concept. Any large-scale business activity employs processes that are scalable.

  In fact, it was the use of scalable processes that allowed these activities to become as large as they are. It is impossible to think of any large enterprise that was not scaled. And, because organizations and the people who run them depend so much

  on predictable outcomes, it is abundantly obvious that one’s investigations should employ replicable processes to achieve them. Take, for example, my organization, Convercent, Inc., of which I am the chief ethics officer. By means of trial and error, we have learned that the most productive investigators we produce are not those that come to us with investigative or law enforcement experience. While these qualifications are required by some organizations, we have found the best investigators are the product of the processes they use, not the amount or type of experience they possess. We have consistently found that intelligent and disciplined professionals of any stripe, when given good processes and proper supervision become

  good investigators. What’s more, they haven’t the need to unlearn bad habits or old school methods. Using the modern methods and processes described in this book,

  my new investigators hit the ground running. As such, we easily scale our business as need demands it.

  However, workplace investigations are more than just processes. They typically

  involve the convergence of many disciplines and an assortment of uncommon skills.

  More often than not, the investigator must have a comprehensive understanding of criminal, civil, and employment law. They also require a considerable investment of time, money, and patience by the employer. Then, finally, to ensure success, the process must be highly structured and flawlessly executed. Even the most sophisticated organization can find the task consistently challenging. Figure 1.1 illustrates this point.

  Therein is the opportunity. Every organization, public or private, eventually

  finds itself in need of an internal investigation. Be it the suspicious disappearance of tangible or intangible assets, the questionable ethical practices of an employee, or the troubling allegation of sexual harassment. Sooner or later, every organization is confronted with the need to gather evidence, interview suspects, and uncover the truth. With the ability to muster the necessary resources, deploy skilled fact finders, and adhere to a disciplined process, any organization can conduct a successful workplace investigation.

  The Process of Investigation ◾ 5

  criminal

  civil

  employment

  Figure 1.1 Workplace investigations take place where criminal, civil, and

  employment law intersect. Note that private sector investigations are performed pursuant to the needs of the organization or person for which it is performed.

  And, although private sector investigations frequently investigate potential violations of the law, private sector investigators rarely have law enforcement powers.

  In addition to the above factors, workplace investigations are fraught with labi-ality. Workplace investigations of even the simplest variety are not for the faint hearted. By definition, they involve the investigation of people who have a relationship with the organization. Most often those people are employees. They are insiders. They are people with whom the organization employs or does business. As such, they have special rights, expectations, and very often they carry a sense of entitle-ment and inflated importance. These considerations significantly add to the complexity of the fact finding process and the manner in which the subject may respond to the investigation’s findings and management’s corrective actions. Regardless, the path is filled with legal obstacles and challenges. For the unknowledgeable and unprepared employer, it is a virtual legal minefield. On the other hand, the totality of these complexities gives the properly prepared and equipped employer a decisive competitive advantage. The employer that is able to efficiently bring an end to a workplace substance abuse problem, catch thieving employees in the act, or obtain restitution from a dishonest vendor, without litigation or a public relations debacle, has a significant competitive advantage over the employer who cannot.

  1.3 Investigation Terminology

  1.3.1 Investigation

  Etymologically, to investigate something is to look for traces, or vestiges, of it. The word can be traced to the Latin word investīgāre, meaning “search into,” a compound verb based on vestīgāre, meaning “track” or “trace,” of which was a derivative

  6 ◾ Investigative Interviewing

  from vestīgium, meaning “footprint.” Ergo, the silly and terribly overused human footprint as a component of the business logos used by many private investigators. However, today the noun version of the word, investigation is used for many purposes and means different things to different organizations. For our purposes, we might consider the following definitions: An investigation is the systematic and thorough examination and inquiry into something or someone, and the recording of this examination or inquiry in a report. 1 Good, but consider instead: An investigation is the examination, study, searching, tracking, and gathering of factual information that answers questions or solves problems. 2 Better yet, might be my definition: An investigation is the logical and intelligent collection of information through inquiry and examination for the purpose of developing evidence so as to solve a problem.

  Notice that the definition does not contain a reference to prosecution or litigation. That is because a workplace investigation is generally undertaken to learn something. The result is then used to prove or disprove an assertion, claim, or allegation. Thus, prosecution and litigation are a byproduct of an investigation, not its purpose. Because of the ability to prove or disprove something, properly employed workplace investigations can provide many dividends for the employer. In addition to uncovering facts and essential information needed to solve problems, a successful investigation helps restore order. It provides the employer the opportunity to analyze process and system failures and reengineer them to prevent future problems.

  1.3.2 The Subject

  It has only been within the past 40 years that those without law enforcement

  experience have been openly welcomed to conduct workplace investigations.

  Historically, most private sector investigators worked first in the public sector.

  Typically, those with former law enforcement or military investigative experi-

  ence were the people selected to conduct private sector investigations. For a

  host of obvious reasons, this choice made sense. These investigators were not

  only well trained, they were disciplined and knew how to obtain results. With

  them they brought not only the tools of the trade, but the vernacular that its

  practitioners used. So, while we have recently seen more workplace investigation conducted by those without law enforcement experience, much of the vernacular

  used by their predecessors remains in use today. As harmless as this may seem,

  it has its consequences.

  Of the claims made by those who have been the focus of a workplace investiga-

  tion, one of the most common is that the investigation was too harsh and that the investigators who performed it were heavy-handed and inhumane; that the investigators acted like cops. So, when an investigator conducting a workplace investigation uses the language of cops, the accusation he acted like one seems more credible. In fact, isn’t it often possible to identify one’s profession by the way he communicates? If you disagree, spend several hours with a lawyer.

  The Process of Investigation ◾ 7

  Thus, when private sector investigators communicate like public sector inves-

  tigators, we are conditioned to expect them to behave like it as well. This mistake by the person conducting a workplace investigation may superficially make them

  appear more professional, but will likely
invite challenges otherwise not encountered. Among them might be claims asserting constitutional rights violations, due process violations, the unlawful use of police-like coercion and intimidation, as well as the entire banquet of companion torts associated with these—all because the well-meaning investigator used the vernacular of another profession.

  The first such word I recommend you eliminate from your vocabulary is sus-

  pect. The word is harsh and accusatory. Replace it with subject. Throughout the remainder of this book you will see that I only use the word subject to describe the investigation’s person of interest. Thus, while I may suspect someone, I never call them the suspect.

  Tip: Replace police and law enforcement terminology with that which is softer, less harsh. Use the language common to the private sector and be more thoughtful of your customer and how your investigative results will be used.

  1.3.3 Interview versus Interrogation

  Few words used by investigators are more misleading and confusing than interview and interrogation. Without much thought, most people use the words interchangeably. Some workplace investigators think that by using the word interrogation, they and their methods sound more sophisticated. Confusing the matter further, organizations, such as the highly regarded firm, John E. Reid and Associates, Inc., which teaches The Reid Technique® and The Reid Technique of Interviewing®, insists that all proper admission-seeking processes involving questioning of a subject include both an interview and interrogation component.3

  Heaping more confusion onto the matter are reference resources, like USLegal.

  com, which offer the legal definition of interrogation as:

  Interrogation is, in criminal law, the process of questions asked by

  police to a person arrested or suspected to seek answers to a crime. Such

  person is entitled to be informed of his rights, including right to have

  counsel present, and the consequences of his answers. If the police fail

  or neglect to give these warnings, the questions and answers are not

  admissible in evidence at the trial or hearing of the arrested person.”4

  Suffice it say, there is little agreement as to what these words mean and how

  they should be used. What appears to be agreeable to most, however, is that an

  interview seems less structured, less formal, and maybe even less accusatory than

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  an interrogation. And, it is precisely because of this presumption that I prefer to use the word interview. I strongly suggest you use it as well.

  1.3.4 The Suspected Wrongdoer

  Following the rationale described above, I also find objection with using the word accused. Given of the word’s root accuse, identifying someone as the accused is accusatory. Not only do people find being accused of something objectionable, the misuse of the word has created the impression that to be accused is to be guilty.

  This connotation is not useful to the furtherance of most workplace investigations.

  Because those who are accused tend to be defensive and protective, they are generally less cooperative when interviewed. A kinder, gentler substitute is suspected wrongdoer. Though I will occasionally use the word accused to describe the investigation’s person of interest, I prefer the substitute , suspected wrongdoer.

  1.3.5 Fact Finders versus Investigators

  Like the words suspect, interrogation, and accused, the word investigator can be somewhat coarse. Though I use the word frequently, its misuse can connote that

  not only has the person who has undertaken the investigation engaged in fact finding, he has come to some conclusions as well; conclusions possibly regarding guilt or innocence. Consider the presumptive: “The investigators found no evidence of his guilt.” I prefer instead to use the term fact finders.

  Fact finder is more descriptive. Its use is more suggestive of what the investigator is actually doing. Therefore, while we may use the word investigator (as I just did above) for the purpose of convenience and brevity, in the conduct of workplace investigations, the preferred descriptor is fact finder.

  1.3.6 Decision Maker versus Prosecutor

  Equally disagreeable is the word prosecutor. While its use by those routinely involved in workplace investigations is rare, a very descriptive substitute is decision maker. I will use this term throughout this book. Should you read enough of it, you will discover as well that I make a strong argument that the fact finder and decision maker should not be one in the same person. Whenever possible, these roles should be held by different persons. Doing so diminishes the appearance (and successful accusation) of bias and preconceived investigatory conclusions. Logically, if the fact finder is not the decision maker, it is very difficult for him to control the decisions of the decision makers and the punishment of the wrongdoer. Make

  a practice of using the term decision maker to describe the customer who the fact finder serves.

  The Process of Investigation ◾ 9

  1.3.7 Misconduct and Malfeasance

  In About the Author in the front matter of the book, you might recall that my

  experience includes “the investigation of employee dishonesty, substance abuse, and criminal activity in the workplace.” This claim is true. However, the reader will note that collectively my experience is in the area of investigating employee misconduct and malfeasance. Some of the things investigated are both employee misconduct

  (and malfeasance) and, at the same time, crimes. However, as we will discuss later, it is not the criminality that is investigated in these situations, but the misconduct and malfeasance of the wrongdoer. Furthermore, in the context of our discussion, all crimes involve misconduct, but not all misconduct constitutes a crime. Thus, the workplace fact finder is better off consistently describing that which he investigates as misconduct or malfeasance, not crimes.

  1.4 Elements of a Successful Investigation

  It is common that my customers ask me what is needed for the contemplated investigation to be successful. At the expense of sounding trite, the answer I offer is quite simple. In order to be successful, every workplace investigation requires the following elements:

  ◾ Management commitment

  ◾ Meaningful objectives

  ◾ A well-conceived strategy

  ◾ Properly pooled resources and expertise

  ◾ Lawful execution

  Let’s now examine each of these critical elements in detail.

  1.4.1 Management Commitment

  Because workplace investigations can be extremely complex and often involve

  potential litigation, a commitment by management is an essential component if

  success is to be achieved. From the very beginning, management must be prepared to commit the requisite time, patience, and resources in order to achieve its objectives. It is misleading and dishonest for the individual responsible for driving the investigative process (a person from this point forward we shall refer to as the project manager) to allow the employer (typically his employer or client) to believe anything less. To obtain quick results with little effort or with few resources is often impossible and even reckless. In accepting the assignment, the project manager must be prepared to accept responsibility and communicate honestly with his customer.

  Only with the proper information and a thorough understanding of the issues and

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  options can the employer make decisions that are sound and appropriate. Anything less will diminish the return on investment and invite potential litigation.

  Tip: Complex problems that have evolved over time cannot be solved in an after-noon. Employers and their decision makers must allow the fact finder the time she needs to properly conduct her investigation and bring it to a meaningful conclusion.

  Time is a precious commodity. Each of us is allocated just so much; there-

  fore, how we use it, by and large, will determine what we produce and how
much.

  Because investigations are dynamic, the use of time and the allocation of it to any particular task is a critical aspect of project management. The project manager is responsible, among other things, for the establishment of the project’s objectives. In doing so, he will define milestones and deadlines. It is he who will ensure that the investigative team remains on course and the project is accomplished in a timely fashion.

  A successful investigation also requires patience, a virtue few practitioners

  seem to have. The simple truth of the matter is that a proper investigation takes time. They frequently unfold in fascinating and often unexpected ways. Although the experienced project manager can influence the pace in which his or her investigation unfolds, there are aspects of it that may be uncontrollable. Undercover investigations are a perfect example. Undercover investigations are extraordinarily complex. They involve the careful selection and placement of an investigator into an unsuspecting workforce. The investigator must then assimilate into that workforce and gain acceptance. This phase of the investigation is called the relationship-building phase. Once assimilated, the investigator moves into the proactive phase.

  Once there, with the guiding assistance of his project manager, he begins to collect the information necessary to obtain the investigation’s objectives. This takes time, and often a lot of it. A four-month undercover investigation is not uncommon.

  The effort cannot be forced or willed. Despite the anxiousness of the other parties involved (the employer client or law enforcement), the investigation must unfold at its own pace.

  In the case of undercover, experience has shown that the relationship building

  phase is a four-to-six-week endeavor. The proactive phase of the investigation may require an additional 6 to 16 weeks. A whole host of variables will impact the length of the investigation, but in extreme situations, the case may need to be run six months or more. The lack of patience will make an otherwise routine undercover