December 17, 2011 (Original publish date) • By Dennis Beaver
If you know of someone who has been asked to participate in an investigation where the results could lead to loss of employment or criminal prosecution or both, today’s story will be of special interest as we take a close look at the people asking those questions.
Just how competent are they and what training do they have in conducting a fair interview which will lead to an accurate and complete statement from that frequently very nervous person sitting across the table? Is there some way of knowing if the “investigation” is really a sham, made to look like a search for the truth, but a decision has likely been made already to fire someone or seek criminal prosecution?
“Surprisingly, there are many people, both in law enforcement and working as private investigators, who are not well trained at all in this important skill,” states one of the nation’s leading experts on interviewing techniques, Dr. Denise Kindschi Gosselin, chair of the Sociology and Criminal Justice Department at Western New England University in Springfield, Mass.
She is author of “Smart Talk: Contemporary Interviewing and Interrogation,” which is used by law enforcement agencies and universities in 31 states and a number of countries in the English-speaking world.
CSI gives an incorrect impression
“For most people just the thought of being in that situation as the focus of attention will be a bit scary, and often with good reason,” Dr. Gosselin tells You and the Law.
“Television shows such as CSI have given the impression that the law enforcement and private investigators are extremely well trained in the art and science of conducting interviews and interrogations. While many are, you cannot assume that to be the case. The consequences of a poorly conducted interview can be dramatic, with completely wrong conclusions being reached and inaccurate, deeply flawed investigative reports generated,” she points out.
Who conducts the interview determines your rights
“Where someone from law enforcement conducts the interview, in general there are far more protections for the person interviewed than if it is a private investigator. We use the term ‘interrogation’ when that interview takes place with a person in custody, and where constitutional safeguards come into play, such as Miranda warnings. Today, only 17 states require law enforcement interrogations to be recorded or a video made.
“The danger with a private investigator is that there are none of those safeguards which protect a civilian from governmental intrusion. Losing a job is not the same as facing jail, and therefore standards for private investigators are not nearly as demanding as those for law enforcement. That’s one reason you should always have a lawyer present with you, especially if your job is on the line, so that you are protected from an ‘investigator’ acting in a biased manner,” she recommends.
Should the interview be recorded?
“With a private investigator, there are no national laws requiring recording, but in general it is certainly the best practice to record interviews for many reasons. Let’s say that an employee is suspected of theft and agrees to be interviewed by an investigator or auditor hired by the employer. The employee asks that it be recorded. But if the investigator refuses, the danger to the case and his or her employer is that this refusal to record will look as if the report they write will be biased and prejudicial. It could help the employee.
“Especially in a suspected employee fraud or embezzlement case, the investigator or auditor could easily be seen as in a quasi-law enforcement capacity. Recording allows the investigator to focus on the employee rather than taking notes, as note taking, even if you are typing, will mean that you are leaving out information during that process. And what is left out can be critically important. A recording also allows investigators to analyze the statement at a later time.
“So by not recording, the investigator is hamstrung — that’s why it is good practice to use a digital voice recorder or video. Having access to good equipment today is generally simple. Refusing to use it if available could make the investigator look like he or she has an agenda,” underscores Dr. Gosselin.
“Many organizations have a policy to record, and if one of their investigator refuses or will not permit the employee/subject to record the interview, then that person needs to be reported, as this suggests bad faith. With police officers, juries may question unrecorded statements.
“An interviewer in a fraud situation should preserve the statement in a permanent form, such as an audio or video recording. If it’s in writing, the individual needs the right to make corrections,” Dr. Gosselin strongly advises.
(Next week: How to protect yourself from an interviewer with an agenda.)
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.