WILLIAM F. BLAKE
T
he 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 the United States, the English language ability of some residents poses a problem. Also contributing to this problem are the limited linguistic skills of many investigators. To circumvent these issues, it may be nec-essary to interject a third person into the quest for information. This creates 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 the responsible 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 is adequate proof that a specific individual is responsible.
The professional investigator must ensure that the words spoken during an interview do not suggest to the person being interviewed that a specific response is required; it may deliberately or mistakenly indicate a particular individual is responsible for an incident. The investigator must have many skills to be a highly skillful interviewer—
some are instinctive and some must be learned. To achieve the goal of 133
impartiality and professionalism, the investigator must have some unique 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
• A skilled communicator
• Receptive to different ideas and concepts; impartial and receptive to alternate ideas
• Possessed of a sense of confidence and well-being
• Dedicated to work
• Self-starter
• Skeptical
• Intuitive
• Energetic
• Good actor
• Capable of good judgment
• Logical
• Intelligent
• Imaginative
• Of good character
• Professional
PLANNING THE INTERVIEW
As with any part of an investigation, it is important to prepare for an interview. The manner in which you conduct the interview will be directly related to your success. If the investigator uses a rambling approach 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 a message of professionalism and competence.
The most essential preparation is a complete and thorough understanding of all available information concerning the matter under in
-quiry. The first few minutes of an interview with an individual sets the tone for the rest of the encounter. It is the investigator’s responsibility to create a calm atmosphere in which the interviewee will feel relaxed and willing to communicate. This is especially important when the interviewee is a native of a country where investigators are not respect-ed or use unconventional and frequently repressive interview tech-niques.
Cultural awareness is a key component of establishing a respectful rapport with the interviewee. Because of cultural background differ-ences, there may be those who are afraid of anyone who appears to have “authority” over them. This may be caused by a uniformed offi-cer, supervisor, or manager or the manner in which the interviewer speaks. 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 all interviewers and interpreters prior to the start of the interview. A sec-ond interviewer should be present during the interview of a person of the opposite sex to reduce the probability of a claim of impropriety on the part of the interviewer. There should be a prearranged signal between the interviewers for when it is desirable to change interview-ers. There should also be a separate signal to be used between the interviewers and the interpreter when there is a need to talk out of the hearing of the interviewee. Caution should be exercised when select-ing the interviewers. If the interviewers are significantly larger in stature than the interviewee, there is always the possibility that the interviewee 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 in reducing problems of perceived restraint of freedom for the
intervie-wee. The ideal setup is with the interviewee in a position in which there is no actual or implied indication that the interviewee is not free to leave the interview at any time. The primary interviewer should be directly across the table from the interviewee to maintain eye contact.
The room furniture should be limited to a table and chairs for the interviewee and the interview team. The walls should be free of all dis-tractions such as pictures and related items. The interpreter should be seated where he or she is not directly facing the interviewee, although in a position to observe the facial expressions and body language of the interviewee. The use of audio and visual recording equipment is a matter 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 under the direction and control of a law enforcement officer or prosecutor.
Using an off-duty law enforcement officer who may be acting in a security officer or private investigator capacity can create problems.
Prior to using such a person to conduct an interview, it is wise to obtain written legal advice concerning the interview tactics.
WEINGARTEN RIGHTS
There are additional legal requirements when the person being interviewed 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 the rights 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 questioned about poor work would have a reasonable fear of disciplinary action 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 any time during the interview.
2. When the employee asks for representation, the employer must choose from among three options:
a. Grant the request and delay questioning until the union repre-sentative arrives;
b. Deny the request and end the interview immediately; or c. Give the employee a choice of: (a) having the interview
with-out representation or (b) ending the interview.
C. If the employer denies the request for union representation and continues the meeting, the employee can refuse to answer ques-tions.
D. Employers sometimes assert that the only function of a union stew-ard at an investigatory interview is to observe the discussion; in other words, to be a silent witness. This is incorrect. The steward must be allowed to advise and assist the employee in presenting the facts. When the steward arrives at the meeting:
1. The supervisor or manager must inform the steward of the sub-ject matter of the interview; in other words, the type of miscon-duct being investigated.
2. The steward must be allowed to have a private meeting with the employee before questioning begins.
3. The steward can speak during the interview, but cannot insist that the interview be ended.
4. The steward can object to a confusing question and can request that the question be clarified so that the employee understands what is being asked.
5. The steward can advise the employee not to answer questions that 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 she has a right to union representation.
QUESTIONS AND ANSWERS REGARDING WEINGARTEN RIGHTS
Steward’s Request
Q: If I see a worker being questioned in a supervisor’s office, may I ask to be admitted?
A: Yes. A steward has a right to insist on admission to a meeting that appears to be a Weingarten interview. If the interview is investiga-tory, the employee must be allowed to indicate whether he or she desires the steward’s presence.
Coercion
Q: An employee summoned to a meeting with her supervisor asked for her steward. The supervisor said, “You can request your stew-ard, but if you do, I will have to bring in the plant manager and you 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 to coerce 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 stew-ard, but the supervisor said no. Can the employee refuse to go the office without seeing his steward first?
A: No. Weingarten rights do not arise until an investigatory interview actually begins. The employee must make a request for represen-tation to the person conducting the interview. An employee can only refuse to go to a meeting if a supervisor makes clear in advance that union representation will be denied at the interview.
Medical Examination
Q: Our employer requires medical examinations when workers return from medical leaves. Can an employee insist on a steward during the examination?
A: No. A run-of-the-mill medical examination is not an investigatory interview.
Lie Detector Test
Q: Do Weingarten rights apply to polygraph tests?
A: Yes. An employee has a right to union assistance during the pre-examination interview and the test itself.
Sobriety Test
Q: If management asks an employee if he will submit to a test for alco-hol, does Weingarten apply?
A: The employee must be allowed to consult with a union represen-tative to decide whether or not to take the test.
Locker Search
Q: If a guard orders an employee to open a locker, can the employee insist on a steward being present?
A: No. A locker search is not an investigatory interview.
Counseling Session
Q: An employee was given a written warning for poor attendance and was told she must participate in counseling with the HR depart-ment. Does she have a right to a union steward at the counseling sessions?
A: This depends. If notes from the sessions are kept in the employee’s permanent record, or if other employees have been disciplined for what they said at counseling sessions, an employee’s request for a steward would come under Weingarten. If management gives a firm assurance that the meetings will not be used for discipline and promises 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 ques-tions at an investigatory interview?
A: No. Weingarten only guarantees the presence of a union represen-tative.
Recording the Interview
Q: Can a supervisor tape-record an investigatory interview?
A: This depends. The Weingarten decision itself does not forbid an employer from tape recording an investigatory interview. If this represents a new policy on the part of the employer, however, the steward can object on the ground that the union did not receive prior notice and have an opportunity to bargain.
Questions About Others
Q: If a worker is summoned to a meeting and asked about the role of other 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 admit-ing that he or she was aware of illegal activities. Because what he 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 the plant. If the union representative tells the employees not to answer questions, 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 such orders, 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 union and nonunion employees in the same business entity. Some individuals 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 of impropriety, nonunion employees should be allowed to have an observer of their choice present during the interview. The observer should not be allowed to participate in the interview in any manner.
The observer is not an adviser to the interviewee, and both parties should 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 into question for the purpose of claiming intimidation of the interviewee.
As a precaution, the circumstances of the interview should be docu-mented. At a minimum, this documentation should include the start and ending times of the interview, the location of the interview room and the location of each person within the room, all persons present during the interview and the reason for their presence, how long each person was present in the interview room, any refreshments provided to the interviewee, and the times and length of each break in the inter-view process. If the interinter-viewers have drinks or other refreshments, the interviewee should be provided with similar amenities.
INTERVIEWING MINORS AND THE ELDERLY
No interview should be conducted with a minor, normally less than eighteen years of age, without the knowledge and permission of a par-ent or guardian. When possible, this permission should be obtained in written format. A parent or guardian is normally allowed in the inter-view room as an observer and does not participate in the interinter-view unless requested to do so by the interviewer.
Interviews with the elderly pose a different problem. Depending on the status of their mental acuity, they may resort to chatter and digress from 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 elderly may pay extraordinary attention to details of an incident because it is an exception to their daily routine.
DEVELOPING INTERVIEW QUESTIONS
The structure of the questions will control the quality and length of the interview. Your interviewing techniques will define the amount and accuracy of the information obtained from each interviewee. A question that solicits a yes or no answer should be used rarely. This type of question should only be used to determine if the interviewee has access to a greater variety of general information.
Each question should be based on the use of the six basic atives of who, why, what, where, when, and how. The basic interrog-atives should be applied to the interviewee’s response to each question to obtain the maximum information. Every question should be struc-tured to specifically obtain desired information but not to indicate the desired answer. The interviewer should be wary of leading questions and letting the interviewee ramble on. A leading question is one that implies the answer. For example, “John Smith was at the scene of the incident, wasn’t he?” This type of question will result in a yes or no answer. A more proper question would be “Who was at the scene of the incident?”
WHAT IS THE BEST LOCATION FOR CONDUCTING AN INTERVIEW?
Whenever possible, the interviewer should normally conduct the interview in a location that provides a psychological advantage to the interviewer. The location may vary with the type of person being interviewed.
A minor witness interview can be conducted in an office or resi-dence where there is no interference from office activities or family matters. The purpose of this type of interview is to meet the intervie-wee in an environment where he or she feels at ease. A significant wit-ness should be interviewed in a location where the interviewer has the psychological advantage. For example, a witness who is interviewed in his office will have a psychological advantage because of his familiar-ity with the surroundings. He would not have the same advantage in a strange office.
Regardless of the location, the need for confidentiality is essential.
Interviews should not be conducted in glass-walled conference rooms
or offices. There should be minimum distractions in the room and no interruptions allowed. Cell phones and similar devices should be turned off.
WHAT IS THE MOST PRODUCTIVE INTERVIEW PROTOCOL?
The interview should start with a very general question: for exam-ple, “What do you know about the incident?” The interviewee should be allowed to speak without interruption, including the taking of notes.
This will allow the interviewer to develop an interview strategy based on the interviewee’s knowledge. Following the initial question, the interviewee should be requested to tell the story a second time and notes taken at this time. After the second recital of facts, detailed and specific questions should be asked to fill in informational gaps and develop additional areas for inquiry.
It is important to remember that it is not always the words used by the interviewee but the manner in which the information is stated that is significant. It is also important to identify what the interviewee did not say in response to a question. The body language of the intervie-wee is an important indicator in the evaluation of the information and the interviewee’s truthfulness. Body language is a good indicator of
It is important to remember that it is not always the words used by the interviewee but the manner in which the information is stated that is significant. It is also important to identify what the interviewee did not say in response to a question. The body language of the intervie-wee is an important indicator in the evaluation of the information and the interviewee’s truthfulness. Body language is a good indicator of