December 24, 2011 (Original publish date) • By Dennis Beaver
For your first day on the job as a deputy district attorney in many small D.A. offices, “training” consists of being handed a file less than an hour before trial.
You trust that the D.A. who reviewed the case has issued subpoenas for witnesses — who we hope are in court — and the reports are accurate. Trust is central to this job. A deputy district attorney relies on offense reports, witness statements, facts which prove the case. And you want to win.
“You want to win, that’s human nature, but for the right reasons, because the defendant is guilty, and the investigators told you the whole story, and gave you evidence of guilt and anything which tended to show innocence. A deputy D.A.’s job is more than just winning.”
That advice was given my first day as a deputy district attorney in Kern County by Clarence Westra, a deputy district attorney who had been there for years and later became a respected Superior Court judge.
D.A.s have a goal: keep bad guys off the street. But they also have a tremendous duty to the accused: fairness.
If you have evidence which tends to show innocence, it must be revealed. You cannot put on testimony or other forms of proof which you know or have reason to know isn’t true. Your job is to seek justice.
Refusing to record the interview is a danger sign
For 24 years, Winterville, N.C.-based Mark McClish was a deputy United States marshal and taught interviewing at the U.S. Marshals Service Training Academy. A recognized expert in the field of deception, McClish conducts seminars in statement analysis and interviewing techniques.
We asked, “What conclusions would you reach about an investigator who refused to record an interview or to permit a recording to be made?”
“I immediately think hidden agenda, where guilt, innocence, civil liability or loss of employment has already been decided, regardless what could be learned during the interview. Law enforcement and private investigators are held to a standard of honesty, to be fair and accurate in what they report and how they gather information, seeking the truth, doing nothing which stands in the way of a just outcome.
“In my opinion, any interviewer who expects to be seen as both competent and credible wants to record the conversation. With the availability of inexpensive and simple-to-use digital voice recorders, there is no valid reason not to record. A transcript or simply listening to the recording allows for follow-up questions if something was missed.
“Additionally, recording the statement provides an acccurate record of what was said, and we can use statement analysis techniques to see if the person is being truthful and obtain additional information,” he added.
“Even if you are typing or taking notes, you are going to miss some information. You have to record their answer verbatim, for if you paraphrase, you are changing their statement. That’s why you record,” he stressed.
“But there is something even more dangerous to the person being interviewed. The refusal to record or to permit recording tells me the interviewer does not want their questions and comments recorded.”
Trick questions = bad faith
“Refusing to record shows a lack of interest in preserving what was said accurately, inviting leading and suggestive questions, such as these posed in a theft case: ‘Did you take the money because you were trying to feed your family, or because you were greedy?’
“This type of question is compound, would never be permitted in court, and is used when you are trying to obtain a confession. It forces a response which could easily not be true, but it takes a very strong person to stand up to the investigator, which it why it is not a fair question when trying to obtain information,” McClish observes.
“Just tell me what happened Is the best approach, and is precisely the way you should conduct an interview, because you want to encourage the person to tell you what they know without feeling restrained or limited in some ways. So a good interviewer will use open-ended questions, such as, ‘Tell me everything you know about …’”
The former U.S. marshal strongly believes in the importance of at least consulting with an attorney if asked to be interviewed in a case which has consequences to your employment and possibly even criminal trouble as well.
“Experienced attorneys will immediately see what is really going on and can object or stop the interview. But when the interviewer clearly reveals bias or prejudice, your lawyer might still want the interview to go on and for you to completely cooperate.
“For it is your lawyer who is now a powerful witness to that hidden agenda, which wasn’t so well hidden after all,” McClish concluded.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.