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  the size of investment the client is willing to make, the fact finder then begins the information-gathering phase of the investigation. Using elementary computer forensics, he quickly finds temp files, trash bin items, saved images, and book-marked web pages related to or containing pornography as defined by the orga-

  nization’s policy, on the subject’s notebook (he uses a docking station while in the office). Is the investigation sufficient and has the fact finder achieved the standard of proof selected? The answer will surprise you … it is a qualified “yes” to both questions.14 However, the investigator should not end his process here. He should move his effort to the next phase of investigation, and interview the subject. The reason he should do this is twofold: (1) there may be extenuating and mitigating circumstances unknown to the fact finder, and (2) if the subject is guilty as suspected, an admission should be sought.

  In properly interviewing the subject, our investigator fulfills any due process rights the subject might enjoy, and, if he provides an admission, it will be used as proof of his guilt.15 The decision makers can then effectively discount or discard the evidence developed during the forensic analysis and hang their disciplinary decision on the subject’s admission alone. In doing so, the subject is denied the opportunity to attack any aspect of the forensic portion of the process or claim a material defect in the evidence it produced. If he disagrees with the discipline and wishes to fight it, he must first overcome his own admission. In acting upon the admission only, the client has met the good faith investigation/reasonable conclusion standard and has significantly reduced that chance of an evidentiary challenge.

  30 ◾ Investigative Interviewing

  Tip: The information gathering and fact finding phase of the investigation is not an end but a means. It affords the investigator the information he needs to interview the subject and successfully obtain an admission.

  1.6.4 Verification and Analysis

  As discussed above, the next phase involves the systematic interview of those identified during our information gathering and fact finding. These interviews are called investigative interviews and are reserved for those who we have a very convincing reason to believe committed the offense or offenses in question or had direct involvement in it. Many professional investigators and employers overlook this

  opportunity. They frequently forego investigative interviews and opt for termination or even arrest. Although termination and arrest might remove the offender

  from the workplace, it is not a complete solution. Properly conducted investigative interviews often yield information not otherwise attainable by any other means.

  A cooperative interviewee can provide information and intelligence spanning

  the term of his employment. Even a lengthy undercover would only produce direct evidence developed during the course of the investigation. A cooperative interviewee is likely to provide information regarding others as well. It is not unusual for a culpable offender to “give up” or “roll over” on co-conspirators during an interview. This information is corroborative only. However, the accumulation of enough corroboration could justify the interview of an individual not identified during the information-gathering phase of the underlying investigation. In substance abuse investigations, this is very common. The resultant expansion of information and intelligence and ultimate identification of many more additional offenders significantly enhances the ROI. I have had investigations in which my team began

  interviewing with information involving two employees and when finished had

  interviewed over 30. In one particularly memorable case, a female employee identified 110 employees whom she alleged sold cocaine at work. Sobbing as she discussed her transgressions, she said she was sure she had sold to additional employees, but could not remember any more names.

  As mentioned earlier in the last section, investigative interviews also yield admissions. From an employment law standpoint, properly obtained admissions constitute the best evidence an employer can obtain. Unlike criminal law where admissions

  and even confessions often only have corroborative value, an employer needs only to proffer an admission to make its case. No other proof is necessary. An admission even trumps other evidence with which it conflicts. From an employer’s perspective, there is no better evidence than an admission. Some of the best attorneys I know have failed to leverage this powerful opportunity. Don’t make the same mistake. Whenever possible follow your information gathering with investigative interviews.

  The Process of Investigation ◾ 31

  Tip: Successful investigative interviews are largely predicated on the amount of information the interviewer possesses before the interview. Bypassing the information gathering and fact finding phase and going directly to investigative interviews rarely produces useful results and creates unnecessary liability for both the interviewer and the customer.

  1.6.5 Decision Making

  Following the third and fourth phases of the investigation, the project manager should assemble the results and present it to the decision makers. This typically involves reducing the findings into a concise report and formally presenting it. To analyze, interpret, and detail one’s work is easier than it sounds if the project manager has the proper information management processes in place. I will discuss these and other important subprocesses later. What is important now is to appreciate

  what has been achieved up to this point and its value to the client. Effectively, the process should have yielded:

  ◾ significant factual information regarding the matter under investigation

  ◾ information identifying at least some of those involved and some idea of

  their purpose

  ◾ corroborative information from investigative interviews regarding those

  involved from co-conspirators or witnesses

  ◾ admissions from the wrongdoers regarding their transgressions

  Demonstrably the investigative team has leveraged the initial information

  gathered during the fact finding phase into two additional sources of information: that which was provided by the subject and that which others said about him.

  Armed with this wealth of information, the employer client can then easily and

  safely determine the equitable disbursement of discipline and/or corrective action if appropriate. Let’s look closer.

  In the instances in which admissions exist, decision making is simple. Lacking

  admissions, the employer client might have corroborative statements from those

  who made admissions as well as other evidence developed during the fact finding phase. Lacking any admissions, the employer client still has the results from the fact finding phase. Even in the face of a denial by any particular subject, armed with sufficient incriminating information, the employer client is afforded the luxury to safely make a tough call if it applies a good faith investigation/reasonable conclusion standard. In other words, the process has engineered defensible fallback options even in the worst case scenario—no admissions from anyone. This may

  all appear a bit esoteric, but I assure you these intricate machinations will not be

  32 ◾ Investigative Interviewing

  missed on a trier-of-fact with any sophistication. At the very least, if challenged, the employer client and its investigators will be able to demonstrate they employed a well-conceived process, one with structure, purpose, and fairness. It is one that epitomizes professionalism and separates it and its principles from the typical bun-gling incompetents that most judges and juries are accustom. Plaintiffs and the attorneys that represent them, love employers (and investigators) that lack process, fly by the seat of their pants, and make mistakes at every turn.

  It should be emphasized that this phase of the investigation is the responsibility of the organization’s decision makers. It is often best that the fact finder is not involved in either the decision making or discipline disbursement phase of

  the investigation. To
do otherwise may create the appearance of bias or prejudice.

  Similarly, those who are not true fact finders should not become part of the fact finding process. Segregating these duties is critical to the protection of the investigation’s integrity and those that conducted it.

  Tip: The fact finder should never play the role of decision maker, or vice versa.

  In fairness to the subject and the process, separate the duties of the fact finder and decision maker.

  1.6.6 Disbursement of Disciplinary and/or Corrective Action

  This phase of the investigation might appear perfunctory, but it is not. Regardless of the quality and sophistication of the process, the decisions regarding discipline and corrective action must be fair and equitable. Good evidence and an admission don’t make a minor offense a capital crime. Conversely, punishing all offenders equally is not necessarily equitable. The punishment must first fit the crime, then, like crimes must be punished similarly. The failure to do so, invites discrimination and disparate treatment claims. Successfully defending such claims can be embarrassing and costly.

  Once decided, the discipline must be dispensed. How and by whom is the next

  decision? Here again the fact finder should play no role. These are management

  (decision maker) decisions and actions. However, some interesting twists exist. As a fact finder, I have often found myself in a consultative role during this phase of the process. Often when confronted by unusual facts or circumstances, my decision makers have turned to me for guidance. While I make it a practice of not recommending one form of discipline or corrective action over another, I have advised my employer clients on such things as the strength of my evidence, the appropriateness of the discipline contemplated and how others in similar circumstances

  chose to respond. Other options include allowing those selected for termination of employment the opportunity to resign instead or offering those allowed to resign a hold-harmless agreement to sign in exchange for the employer not opposing their

  The Process of Investigation ◾ 33

  application for unemployment insurance. We will discuss these and other interesting options later in the book.

  1.6.7 Prevention and Education

  Tying the process together is the last phase of prevention and education. During this phase, the employer client and investigative team join together to critique the effort, benchmark, identify best practices, and analyze their performance. Additionally, this employer client/investigative team assesses the damage and attempts to sort out what went wrong in the first place. What was it that allowed the problem to occur and how can it be prevented in the future? This evaluation can be priceless.

  Clearly, if the organization continues the same practices, it is likely to get the same result again in the future. Such behavior is worse than pointless, it may be negligent as well. Under the legal theory of foreseeability, negligence is compounded when a party should have reasonably foreseen an event that could have been prevented had it taken corrective or preventative action. Organizations make the mistake often and in doing so incur unnecessary additional liability.

  Finally, the team should reduce its findings into some sort of recommendations.

  The recommendations often include altering or modifying policies, changing or

  imposing new practices, and, finally, training for those who need it. Of all of the phases of investigation, this is the least utilized. In many instances, once the process has reached this phase, no one is interested in doing anything further or expending more resources. However, experience has shown that, if the lessons learned are not leveraged, problems and workplace issues tend to reappear and repeat themselves.

  As such, passing up the opportunity to learn from past mistakes and record best practices seems to be a heavy price to pay for simply wanting to close a file and move on to the next project.

  1.7 Summary

  It should now be clear that the foundation on which all successful investiga-

  tive interviews rest is a quality investigation. All proper and useful investigations are driven by process. That process is called the Process of Investigation.

  It should be clear as well that without a proper investigation an investigative interview is reduced to merely an interview. Generally, such interviews yield

  useful information. However, only occasionally will they yield an admission. In the case of workplace investigations, confessions are not necessary, an employer needs only an admission. In order to discipline an offending employee, in most

  instances, the employer needs only to prove the employee in question committed

  the alleged offense. The employer does not need to prove or demonstrate things

  like means, motive, premeditation, and state of mind or intent. Those elements

  34 ◾ Investigative Interviewing

  of the offense are inconsequential and have no bearing on the employer’s decision to impose discipline. Armed with a properly obtained admission, an employer

  needs nothing more to take disciplinary or corrective action against the offender when appropriate. For those interested in learning more about the Process of

  Investigation, obtain a copy of my book, Investigations in the Workplace, 2nd ed. (Taylor & Francis, 2012). It can be found through retails online or wherever quality books are sold.

  Before moving on and learning how investigative interviews should be con-

  ducted, we have one more matter to examine—the differences between the public

  and private sector. We will take this short diversion because during my trainings many students have demonstrated little understanding of these differences. The

  failure to appreciate them make both their investigations and investigative interviews more difficult and risky.

  1.8 Frequently Asked Questions

  1. My organization does not have an established investigative process. Do you

  recommend it have one?

  Yes. Every organization should have an established investigative process. For larger ones an investigative policy or written protocol is appropriate. A protocol differs from a policy in that it is not as prescriptive, thus more flexible. Regardless, the document should establish how and under what circumstances the organization undertakes an internal investigation.

  Tip: Every written investigative policy or protocol should stipulate that the subject of an investigation must cooperate and that his failure to do so is a violation of that policy or protocol and may be considered insubordination, an offense that in and of itself may result in disciplinary action, up to and including termination.

  2. My organization has never used the method, undercover. Should we consider

  it adding to our toolbox?

  No. Undercover investigations are complicated and expensive—and fraught with risk. Undercover should only be used as a method of last resort. If you are interested in learning more about undercover, obtain a copy of my book Undercover Investigations in the Workplace, (Butterworth-Heinemann, Woburn, 2000).

  Though it is out of print, used copies can still be found on Amazon.com.

  3. You have mentioned risk several times. How big are these “risks” and why

  should the fact finder be concerned?

  The Process of Investigation ◾ 35

  The risks are enormous, both to one’s career and pocketbook. Moreover, the risk of litigation will consume time and money even if the claims are frivolous. The best way to avoid these risks is to use an investigative process to pursue your objectives, obey the law and treat all people with respect and dignity regardless of the circumstances. Bill Berger, Esq. who contributed to Chapter 7, Legal Chal enges and Litigation Avoidance, reminds us that happy employees don’t sue, only those who are angry sue.

  4. What is wrong with choosing employee prosecution as an investigative objective?

  First, employee prosecution is expensive and time consuming. Because the standard of proof is so much higher, the organization will ha
ve to invest more of both to achieve that objective. Moreover, show me an organization with a mission statement that includes something regarding employee prosecution. I have yet to see one. Why? Because it does little to further the goals of the organization or is it consistent with its purpose. Secondly, organizations don’t prosecute lawbreakers, prosecutors prosecute lawbreakers. So, unless a prosecutor decides to take the case, no prosecutions will occur. And, because most asset misappropriations (workplace frauds and thefts) occur as a result of some sort of internal control failure, most prosecutors are not eager to use taxpayer dollars to fix an employer’s internal problem, particularly one that was preventable.

  Endnotes

  1. John S. Dempsey, Introduction to Investigations, 2nd ed. (Farmington Hills, MI: Cengage Learning, 2002), 29.

  2. Charles S. Sennewald, The Process of Investigation, 2nd ed . (Woburn, MA: Butterworth-Heinemann, 2001), 3.

  3. Reid.com. Online at: http://www.reid.com/r_about.html (accessed November 3,

  2013).

  4. USLegal.com. Online at: http://definitions.uslegal.com/i/interrogation/ (accessed November 3, 2013).

  5. Note I did not refer to this amount as the loss. The total loss is actually much greater. In order to calculate it, one must determine the cost of money, transaction and account-ing fees, lost interest on the money, as well as the larger economic impact of not having the $750,000 drop to the bottom line. Remember, all economic losses (unless insured) are bottom line deductions.

  6. Crimes of this type most often involve legitimate vendors; usually it is only one of its employees that is dishonest. If that employee is an officer, his crime is not only his, but that of his organization as well. He and his organization may be both criminally liable.

  Facing criminal charges, the organization is more likely to pay restitution and, very possibly, the cost of the investigation as well.

  7. William C. Cunningham, The Hallcrest Report II (Ocean Isle Beach, NC: Hallcrest Systems, Inc., 1990).