By Shane Sturman, CFI, CPP
As a presenter, we continually wait in anticipation for the inevitable “what ifs” from the seminar attendees. Sometimes it feels as if the “what ifs” can go on forever. However, these investigators are doing exactly what all of us should be doing before, during and after an investigation, asking ourselves those “what ifs” to prepare for the unexpected.
“What if” they can explain away my evidence?
The “what if” dilemma should be part of every investigation. The interviewer should evaluate all evidence collected and try to identify how each individual piece could be explained away. By separating and evaluating each piece of evidence, it helps to minimize biases of guilt that could be caused by what appears to be overwhelming evidence. If the investigator identifies and anticipates the possibility of how the subject will explain it away, further investigation should be conducted to eliminate that explanation. If the investigation cannot eliminate the explanation, the investigator should consider an investigative interview over an interrogation.
The Participatory Method is perfect for cases where the subject could have an explanation that explains the evidence away or where there is circumstantial evidence and it is unknown whether the issue under investigation was caused by a lack of training or if it is an actual integrity related issue. By talking with the subject about unrelated job responsibilities in very general terms, the interviewer strategically steers the conversation toward the issue under investigation. If the interviewer plans the conversation correctly, introducing the issue will seem logical based on the flow of the conversation. When the subject is asked about how the specific process is handled and they explain the correct way of doing it, despite evidence indicating it was done differently, you now know it is not a training issue and statements explaining away the evidence is eliminated.
The interviewer can now seamlessly transition from the Participatory Method into the WZ Non-Confrontational Method with evidence to prove they did it differently than the way they explained.
On the other hand, if the subject is confused about the correct process and explains how they have done it in the past, which corroborates the evidence you have in hand, it may very well be a training issue and should be handled administratively and no adverse effects resulted from the investigative interview.
“What if” they do not admit?
After conducting a thorough investigation where guilt is apparent, you should always ask yourself this question, “If they do not admit, is there enough evidence to prosecute the subject?” If not, the investigation should continue until the interviewer is confident the subject can be held accountable without an admission.
If the goal is to terminate the subject from employment, the evidence should be evaluated to ensure it is strong enough to terminate without an admission and avoid possible litigation. It is a good idea to partner with human resources (HR) or at least understand their goals at the conclusion of your interview. HR will be most concerned with issues such as: unemployment, wrongful termination, EEOC as well as other complaints resulting in possible litigation. Without an admission, can the evidence prove intent and is it strong enough to terminate without fear of litigation?
WZ is frequently called upon by other organizations at the conclusion of their investigation to interview the subject. We evaluate the evidence provided and always ask, “What will you do if they do not admit?” It is not uncommon for an organization to respond that they intend to terminate the subject anyway. When this occurs any and all variables must be taken into consideration. Is the evidence accurate? Is the subject a member of a protected group which could file a complaint? Proceeding without taking these circumstances into account puts both the investigator and organization at risk.
“What if” they do confess?
If the evidence is not strong enough to stand on its own, the defense strategy will likely be to attack the admission and statement of the subject, as well as the interviewer claiming the admission was obtained under duress due to coercion or cite other causes of false confessions. If the evidence is strong enough to convict without an admission from the subject, the addition of an admission will make the case that much stronger. This also minimizes risks to the organization.
Asking “what if” questions prepares the investigator to plan and respond more thoughtfully to the unexpected. Based on that plan, they can expect a certain result from the person they are interviewing. However, when dealing with people, there are no guarantees of the attitudes and behaviors that might be encountered. Preparing with “what if” questions also helps identify the best strategy to achieve not only your investigative goals, but also the goals of your organization.
These are just a few examples of “what if” questions that should be considered before engaging with a subject. However, there can be more depending on the case, environment or organizational philosophy and personality of the subject under investigation.