An interviewer takes on a role at a new company, excited to leverage their extensive interview experience, only to discover that their new organization has a completely different expectation of how to conduct an investigation. One organization mandates recording and another prohibits it; another company may require a written statement while another avoids written documentation.
These policy guidelines are based on case precedent, company culture, and jurisdictional guidelines. Previous successes or failures combined with academic research have helped to facilitate these protocols. The evolution of interviewing techniques is also guided by legislative and policy changes from various sources. The US Supreme Court has ruled on the admissibility of confession evidence and local jurisdictions have provided even more direction and clarity. Additionally, agencies such as the National Labor Relations Board and the Equal Employment Opportunity Commission have made clear distinctions as to what is permissible throughout an investigation. Elite interviewers must remain aware of the ongoing evolution of appropriate interview techniques.
There are numerous parts of an investigation or an interview that are consistently under review for policy or legislative changes. A few of these topics are timely and important for interviewers and decision makers to consider when establishing the rules of engagement for investigations and interviews.
Lying About Evidence
An often-used tactic by interviewers is fabricating the existence of evidence to subjects during an interview. A US Supreme Court ruling in Frazier v. Cupp 394 U.S. 731 (1969) permitted the use of deceptive interrogation topics. Within the framework of this ruling, interviewers may have made statements such as, “We have video evidence of you stealing from the safe” or “Your fingerprints were identified on the weapon” even if there was no video or fingerprints. Research has shown that the presentation of false evidence may result in several issues: incentivizing a false confession, contaminating the reliability of a true confession, and impacting the cooperative relationship of the subject and the interviewer.
Wicklander-Zulawski (WZ) has consulted on this issue and has provided support to legislation that would prohibit the use of explicit deception during an interrogation. The state of Illinois has passed legislation that will prohibit the use of this tactic with young subjects during an interview. This groundbreaking law was built through a partnership of the investigative, legislative, academic, and advocacy communities.
Most interviewers who utilize nonconfrontational interviewing methodologies are not impacted by this ruling, as they do not rely on the use of deception to get to the truth. However, this is an important trend for all interviewers to be aware of; removal of this tactic should be widespread and will continue to gain traction.
Electronic recording, whether video or audio, has continued to gain traction among law enforcement and the private sector. From a legislative standpoint, over half of the states have mandates on recording felony-level interrogations and many more require the same with juvenile cases. In the private sector, there is not a legislative mandate requiring recording, but many organizations are starting to investigate this option.
WZ has been recording interviews since 1982 and believes this process has multiple benefits, although there are many variables to consider. When deciding to enact a policy that requires recording of interviews, there are risks and benefits to evaluate. One of the major obstacles for those in the private sector is the cost and management of recording devices and the storage of media afterward. Interviewers must also be aware of the legal implications of recording a conversation as each state may require a different level of consent for those being recorded.
The benefits of recording are countless, with one of the most impactful being the transparency of the interview process. Providing an inside look to human resources, arbitrators, attorneys, and other stakeholders delivers increased credibility to the interview process and resulting admissions. Conversely, it would also provide invaluable training material for self-assessment of the interviewer as well as examples to other investigators. The use of electronic recording also preserves the integrity of the conversation in a more comprehensive way than a written statement at the conclusion of the conversation. Another point of consideration for decision makers is the duration of the recording, as some agencies only record the confession. The benefit of recording is then minimized as there is no transparency to the entire process.
Recording can also be debated from the perspective of the subject. Organizations must also deliberate on their policy allowing a subject to record an interview. There are multiple regulations about recording in the workplace, and the National Labor Relations Board has even weighed in on this issue. All of these variables must be discussed and considered when developing an interview policy.
Requests for Attorneys or Parents
During an interview, there may be a request from the subject to contact their attorney or bring a parent or guardian into the room. Like the policies on recording, each organization may have its own policy regarding these requests. In the private sector, People v. Deborah C. 30 Cal. 3d 125 (1981) addressed the issue of advisement of Miranda rights in a loss prevention or security interview. This ruling exempted these conversations from the requirement of advising Miranda, for various reasons. The subject’s freedom to leave during the conversation as well as the lack of security personnel representing themselves as law enforcement were both important considerations for this ruling. Although this case law permits private sector investigators to have most of their conversations without the advisement of Miranda, it would be prudent for decision makers to thoroughly review this part of their policy.
The request for a parent or guardian to be present during a private sector interview has increased in recent years. Like all the topics we have discussed, there are inconsistencies to policy direction on these requests. Interviewers should understand that the request for a parent may be due to various concerns, including the possibility that the subject has intellectual disabilities. Organizations should consider providing guidance to their investigations teams for these situations.
The field of interviewing is anything but stagnant and requires continuous education and outreach to ensure the interviewer and the organization are aligned. There are multiple ways for interviewers to stay plugged in to the evolving legislative and academic changes in our industry. Publications, such as LP Magazine or the CFInsider, help to facilitate communication and provide a resource for continued education. Involvement in associations or attendance at industry events can also provide insight. Events like Elite Training Days, NRF, RILA, and LPRC IMPACT help to accomplish this same mission.
Interviewers should also set up Google alerts for keywords, follow industry-specific social media channels, and subscribe to publications that consistently report on legislative or policy changes. Interview skills are perishable, the science is always evolving, and policies will forever be changing; it is your responsibility to maintain relevancy and credibility. Since you have read this article, you are clearly headed in the right direction.
This story was originally published in July 2021.