The Complete Idiot''''s Guide to Private Investigating 2nd Edition_8 ppt

When conducting the interview, it is important to remember that the job of the investigator is to determine whether an incident occurred and to identify a particular person as being ther

BASIC INVESTIGATIVE SKILLS

INTERVIEWS, INTERPRETERS,

AND STATEMENTS

W ILLIAM F B LAKE

The private investigator’s principal stock in trade is the ability to

obtain information from various sources This assumes the ability

to communicate with others In a multicultural society such as theUnited States, the English language ability of some residents poses aproblem Also contributing to this problem are the limited linguisticskills of many investigators To circumvent these issues, it may be nec-essary to interject a third person into the quest for information Thiscreates another problem to be addressed

Because communication is a two-way exchange between the

speak-er and the listenspeak-er, it is important to be accurate in the intspeak-erpretation

of the speaker’s words When conducting the interview, it is important

to remember that the job of the investigator is to determine whether

an incident occurred and to identify a particular person as being theresponsible party It is important to ensure that the focus of any inter-view is on the incident and not the alleged perpetrator Being impar-tial requires that all individuals be considered innocent until there isadequate proof that a specific individual is responsible

The professional investigator must ensure that the words spokenduring an interview do not suggest to the person being interviewedthat a specific response is required; it may deliberately or mistakenlyindicate a particular individual is responsible for an incident Theinvestigator must have many skills to be a highly skillful interviewer—some are instinctive and some must be learned To achieve the goal of

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impartiality and professionalism, the investigator must have someunique attributes, among which are

• Observant of body language and locations

• Resourceful

• Patient

• People oriented

• Understanding of human nature

• Knowledgeable of the legal implications of his or her work

PLANNING THE INTERVIEW

As with any part of an investigation, it is important to prepare for aninterview The manner in which you conduct the interview will bedirectly related to your success If the investigator uses a ramblingapproach to obtain information, she or he sends a message to the per-son being interviewed that she or he is not prepared and can probably

be easily misled by the interviewee A structured approach sends amessage of professionalism and competence

The most essential preparation is a complete and thorough standing of all available information concerning the matter under in -

under-quiry The first few minutes of an interview with an individual sets thetone for the rest of the encounter It is the investigator’s responsibility

to create a calm atmosphere in which the interviewee will feel relaxedand willing to communicate This is especially important when theinterviewee is a native of a country where investigators are not respect-

ed or use unconventional and frequently repressive interview niques

tech-Cultural awareness is a key component of establishing a respectfulrapport with the interviewee Because of cultural background differ-ences, there may be those who are afraid of anyone who appears tohave “authority” over them This may be caused by a uniformed offi-cer, supervisor, or manager or the manner in which the interviewerspeaks Family and cultural loyalty is also an influence to be over-come A few minutes of general conversation not related to the matter

at issue may help to develop mutual rapport with the interviewee.Initially showing a conversational interest in the interviewee as a per-son is a considerable help in reducing the possible fears of the inter-viewee

INTERVIEW METHODOLOGY

The interview format and methodology should be known by allinterviewers and interpreters prior to the start of the interview A sec-ond interviewer should be present during the interview of a person ofthe opposite sex to reduce the probability of a claim of impropriety onthe part of the interviewer There should be a prearranged signalbetween the interviewers for when it is desirable to change interview-ers There should also be a separate signal to be used between theinterviewers and the interpreter when there is a need to talk out of thehearing of the interviewee Caution should be exercised when select-ing the interviewers If the interviewers are significantly larger instature than the interviewee, there is always the possibility that theinterviewee may claim intimidation because of the size of the inter-viewers Regardless of stature, an interviewer with a calm, noncon-frontational and respectful demeanor will achieve better results.The physical setup of the interview room plays a significant part inreducing problems of perceived restraint of freedom for the intervie-

wee The ideal setup is with the interviewee in a position in whichthere is no actual or implied indication that the interviewee is not free

to leave the interview at any time The primary interviewer should bedirectly across the table from the interviewee to maintain eye contact.The room furniture should be limited to a table and chairs for theinterviewee and the interview team The walls should be free of all dis-tractions such as pictures and related items The interpreter should beseated where he or she is not directly facing the interviewee, although

in a position to observe the facial expressions and body language ofthe interviewee The use of audio and visual recording equipment is amatter of personal preference However, it is wise to advise the inter-viewee that such equipment is being used

As a private investigator you are not required to advise individuals

of their Miranda rights unless you are conducting an interview underthe direction and control of a law enforcement officer or prosecutor.Using an off-duty law enforcement officer who may be acting in asecurity officer or private investigator capacity can create problems.Prior to using such a person to conduct an interview, it is wise toobtain written legal advice concerning the interview tactics

WEINGARTEN RIGHTS

There are additional legal requirements when the person beinginterviewed is a member of a labor union Principal among these are

the requirements of NLRB v J Weingarten, Inc., 420 U.S 251, which

was decided by the United States Supreme Court concerning therights of unionized workers The pertinent parts of this decision are:

A Weingarten rights apply only during investigatory interviews An

investigatory interview occurs when: (1) management questions an

employee to obtain information; and (2) the employee has a reasonable belief that discipline or other adverse consequences may result For exam-

ple, an employee questioned about an accident would be justified

in fearing that she might be blamed for it An employee questionedabout poor work would have a reasonable fear of disciplinaryaction if he should admit to making errors

B Under the Supreme Court’s Weingarten decision, the following rules

apply to investigatory interviews:

1 The employee can request union representation before or at anytime during the interview

2 When the employee asks for representation, the employer mustchoose from among three options:

a Grant the request and delay questioning until the union sentative arrives;

repre-b Deny the request and end the interview immediately; or

c Give the employee a choice of: (a) having the interview out representation or (b) ending the interview

with-C If the employer denies the request for union representation andcontinues the meeting, the employee can refuse to answer ques-tions

D Employers sometimes assert that the only function of a union ard at an investigatory interview is to observe the discussion; inother words, to be a silent witness This is incorrect The stewardmust be allowed to advise and assist the employee in presenting thefacts When the steward arrives at the meeting:

stew-1 The supervisor or manager must inform the steward of the ject matter of the interview; in other words, the type of miscon-duct being investigated

sub-2 The steward must be allowed to have a private meeting with theemployee before questioning begins

3 The steward can speak during the interview, but cannot insistthat the interview be ended

4 The steward can object to a confusing question and can requestthat the question be clarified so that the employee understandswhat is being asked

5 The steward can advise the employee not to answer questionsthat are abusive, misleading, badgering or harassing

When the questioning ends, the steward can provide information

to justify the employee’s conduct

E An employer does not have to inform an employee that he or shehas a right to union representation

QUESTIONS AND ANSWERS REGARDING WEINGARTEN RIGHTS

Coercion

Q: An employee summoned to a meeting with her supervisor askedfor her steward The supervisor said, “You can request your stew-ard, but if you do, I will have to bring in the plant manager andyou know how temperamental she is If we can keep it at this level,things will be better for you.” Is this a Weingarten violation?A: es The supervisor is raising the specter of increased discipline tocoerce an employee into abandoning her Weingarten rights

Can The Employee Refuse To Go To Meeting?

Q: A supervisor told an employee to report to the personnel office for

a “talk” about his attendance The employee asked to see his ard, but the supervisor said no Can the employee refuse to go theoffice without seeing his steward first?

stew-A: No Weingarten rights do not arise until an investigatory interviewactually begins The employee must make a request for represen-tation to the person conducting the interview An employee canonly refuse to go to a meeting if a supervisor makes clear inadvance that union representation will be denied at the interview

Medical Examination

Q: Our employer requires medical examinations when workers returnfrom medical leaves Can an employee insist on a steward duringthe examination?

A: No A run-of-the-mill medical examination is not an investigatoryinterview.

Lie Detector Test

Q: Do Weingarten rights apply to polygraph tests?

A: Yes An employee has a right to union assistance during the examination interview and the test itself

A: This depends If notes from the sessions are kept in the employee’spermanent record, or if other employees have been disciplined forwhat they said at counseling sessions, an employee’s request for asteward would come under Weingarten If management gives afirm assurance that the meetings will not be used for discipline andpromises that the conversations will remain confidential, however,Weingarten rights would probably not apply

Private Attorney

Q: Can a worker insist on a private attorney before answering tions at an investigatory interview?

ques-A: No Weingarten only guarantees the presence of a union tative.

represen-Recording the Interview

Q: Can a supervisor tape-record an investigatory interview?

A: This depends The Weingarten decision itself does not forbid anemployer from tape recording an investigatory interview If thisrepresents a new policy on the part of the employer, however, thesteward can object on the ground that the union did not receiveprior notice and have an opportunity to bargain

Questions About Others

Q: If a worker is summoned to a meeting and asked about the role ofother employees in illegal activities, can the worker insist on assis-tance from a union representative?

A: Yes Although the employee may not be involved in wrongdoing,

he or she risks discipline by refusing to inform on others or ing that he or she was aware of illegal activities Because what he

admit-or she says at the meeting could get the employee into trouble, he

or she is entitled to union representation

Obstruction

Q: The company is interviewing employees about drug use in theplant If the union representative tells the employees not to answerquestions, could management go after the union representative?A: Yes A union representative may not obstruct a legitimate investi-gation into employee misconduct If management learns of suchorders, the representative could be disciplined

WHAT ARE THE RIGHTS OF A NONUNION

EMPLOYEE IN A UNIONIZED BUSINESS?

For various reasons, it is not uncommon to have a mixture of unionand nonunion employees in the same business entity Some individu-als may choose to not be a member of the union Others may be ex -cluded from union membership because of their supervisory or man-

agement positions These individuals do not have Weingarten rights.

As a matter of fairness and to preclude potential allegations ofimpropriety, nonunion employees should be allowed to have anobserver of their choice present during the interview The observershould not be allowed to participate in the interview in any manner.The observer is not an adviser to the interviewee, and both partiesshould be made aware of this restriction The observer should be seat-

ed in a position where it is not possible for the interviewee and

observ-er to exchange nonvobserv-erbal cues

At a later date, the circumstances of an interview may be called intoquestion for the purpose of claiming intimidation of the interviewee

As a precaution, the circumstances of the interview should be mented At a minimum, this documentation should include the startand ending times of the interview, the location of the interview roomand the location of each person within the room, all persons presentduring the interview and the reason for their presence, how long eachperson was present in the interview room, any refreshments provided

docu-to the interviewee, and the times and length of each break in the view process If the interviewers have drinks or other refreshments,the interviewee should be provided with similar amenities

inter-INTERVIEWING MINORS AND THE ELDERLY

No interview should be conducted with a minor, normally less thaneighteen years of age, without the knowledge and permission of a par-ent or guardian When possible, this permission should be obtained inwritten format A parent or guardian is normally allowed in the inter-view room as an observer and does not participate in the interviewunless requested to do so by the interviewer

Interviews with the elderly pose a different problem Depending onthe status of their mental acuity, they may resort to chatter and digressfrom the issues For many of the elderly, the interview may be a tem-porary respite from loneliness that gives them an opportunity for inter-action not normally available to them On the other hand, the elderlymay pay extraordinary attention to details of an incident because it is

an exception to their daily routine