To Record or Not Record

We just returned from the International Association of Interviewers’ Elite Training Days in Minnesota at the Best Buy corporate headquarters. We had a number of wonderful speakers covering topics ranging from false confessions, the PEACE interviewing model, and Making a Murderer confession tapes evaluations, plus some tips on leadership. All in all it was an interesting and thought-provoking two days of instruction.

One topic that seemed to form a connecting thread through many of the topics was a discussion of confessions, contaminated statements, or improper tactics used by interviewers. The program started off with Steven Z. Kaplan, a litigator with the Fredrikson & Byron law firm discussing a case he worked on that was a miscarriage of justice. He along with other lawyers helped establish the individual’s innocence in a rape-homicide. He went on to discuss some of the causes of false confessions, including presentation of false evidence, age and mental capacity of the suspect, and length of the conversation, to name but a few.

Contaminated Confessions

One of the fundamental issues being addressed by legislatures across the country is the failure of police to record the interview and interrogation of suspects. A number of states have mandated the audio-video recording of police interrogations of suspects. The law firm Jenner & Block has an ongoing research project run by a senior partner to catalog states and cities that mandate recording of interviews and interrogations and the police response to having to record these conversations. This study is available on their website at jenner.com.

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Kaplan suggested the introduction of evidence by the police could contaminate the conversation and provide the suspect with information to make his confession seem credible when compared against the investigative findings. He went on to say that the use of false evidence and the extended length of interrogations can increase the possibility of a false confession occurring. Having a recording of the interview and interrogation can identify if the investigators fed the suspect investigative findings that were later used to corroborate the confession. Unfortunately, simply identifying points in the conversation where information was leaked to the suspect does not clearly identify the suspect’s statement as a false confession. It simply suggests that if the suspect was innocent, the crime scene information could have been introduced by the police. However, if the suspect was guilty, he would’ve already known that information regardless of whether it was leaked by the police or not. Simply stated, the discussion of evidence should be limited during the interview and interrogation so that contamination does not occur.

Michael Yoder, supervisory special agent with the FBI’s Behavioral Analysis Unit, discussed personality types that fit along with the discussion of false confession, which as we mentioned threaded through most of the presentations. Pulling the two previous discussions together, David Thompson, CFI, discussed the implications of these two presentations while discussing and evaluating the documentary Making a Murderer. Evaluating the recorded conversations in the Dassey interrogation, the group was able to critique the conversation and potential missteps that may have affected the suspect’s decision to confess. It was this session that brought up a significant conversation about organizations currently using recordings in their dishonest employee interviews. It is this topic we want to focus the remainder of this and our next column on.

Training and Accountability

As most of you know, we have been actively recording our interviews since we opened our doors as Wicklander-Zulawski in 1982. While we use the recorded interviews to illustrate the techniques and strategies in our training sessions, we also use them as a means to monitor and measure our investigators. If a supervisor is simply evaluating the effectiveness of the interviewer based on the subject’s written statement and whether or not the case was successfully closed with an admission and written statement, she may be missing crucial information on the process.

The recording provides outstanding feedback to the interviewer that can’t be replicated by simply sitting in and observing the conversation. Undoubtedly, the supervisor will miss any number of potential critiques because he is listening in real time. The other problem with this mentoring and evaluation strategy is it requires the evaluator to be present at the time of the interview. Being present may be cost prohibitive or time sensitive because of other commitments. The recording provides an accurate reflection of what happened, when it happened, and how things were said that could never be replicated by an in-person evaluator. Review of the recording can provide significantly more relevant critiques to the new interviewer since he can actually see his behavior and hear his own words and the effect that they are having on the subject. There’s also an opportunity to evaluate behavioral clues that may have been present or verbal statements that could have led the interview in an entirely different direction. We find in our after-action evaluations of WZ interviewers that we can be particularly successful in identifying difficulties or strengths in the conversation.

Many of the participants in the Elite Training Days agreed that their organizations’ legal teams are reluctant to utilize recordings feeling that an investigator’s testimony is sufficient to defend the company against litigation. It is our feeling that times are changing, and there will be an expectation of a recording that will satisfy what actually occurred during the conversation between the investigator and subject. We are currently seeing a significant change in policing across the country first with the advent of dash cams in squad cars and more recently with body cams worn by officers. The quality of these videos and perspective is often limited leaving open to interpretation what was actually happening at the time of the incident. But without question, the preliminary response from police departments using cameras has been a significant reduction in citizen complaints.

One of the most widely reported studies of the use of body cams was conducted by the City of Rialto, California, which reported use-of-force incidents reduced by 59 percent and citizen complaints by 87.5 percent. Other departments have seen similar reductions in use-of-force and citizen complaints since the use of body cams was instituted. It is likely that the body cams significantly alter the police-public encounters since both are consciously aware the conversation is being recorded. This should translate into a significant savings on litigation costs and expenses associated with these types of use-of-force or complaint incidents.

Clearly, the officers are aware they are being closely monitored and are thus focused on adhering to their training in handling field incidents. Recording in an interview also seems to encourage interviewers to stick closely to the training model chosen for their conversation in a more formal interview setting in the station. The use of the recordings holds the officers accountable to the community in both the formal interview setting at the station and infield encounters.

In our last expert-witness engagement, the plaintiff’s attorney broached the question of recording the interview. During our testimony relating to recordings, we focused on the differences between an established interviewing room in a law enforcement facility and those who would have to record in a remote location or store facility that was not set up for recordings. In response to these questions, we noted that there were cost considerations a company must consider in providing its investigators with recording equipment, as well as maintaining and storing it, preserving the recordings, and reviewing the recordings, to name but a few. In the business world, there is going to be a close examination of the return on investment before any capital expenditures are made. Because of the random nature of recording in the field, there would also be issues relating to recordings that were incomplete because of equipment problems, audio that was garbled due to microphone malfunctions or background noise, and potentially the space available to remotely store the recording. This does not even mention the possibility of human error compromising the operation of the equipment, which may come into play.

In our next column, we will continue with the discussion of recording or not recording interviews. We will focus on some aspects of selling recording interviews to the organization and overcoming objections to its use. We will also discuss some of the practical aspects relating to legal issues of recording conversations in the workplace. Finally, we will focus on the benefits of monitoring and measuring interviewers using field interviews as the basis for self-improvement. In the meantime, if you have been successful implementing recording of interviews within your organization and would like to share how you were able to sell the concept or if you have not been successful and would like to share the obstacles you are facing, we will share those thoughts and some recommendations in the next column. Please forward to DZulawski (at) W-Z (dot) com.

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