Witness Statements

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    Witness Statements

    witness-statementsThe Art of the Investigative Interview: Preparation, Attitude, and Documentation

    There are three key areas of concern when approaching an employee (as the “Subject”) of an investigative interview:

    1. PREPARATION BEFORE CONFRONTATION: Before you conduct any investigative workplace interview, be fully prepared.
      • Understand everything you possibly can about the situation and all the people involved before starting the interview.
        1. Do your homework, and be familiar with the circumstances or accusations to the greatest of detail, to the extent possible, and commit these to memory so you can discuss the issues without looking at notes.
      • Know your subject well; if need be, read the whole personnel file and find any details which may give clues to the subject’s life situation and experiences: the job application, absentee excuses, employment reviews, job history, salary history, insurance beneficiaries, reprimands, etc.
      • Prepare the interview room by ensuring it’s a private, comfortable and safe environment.
        1. While making certain you have a safe escape route from the room, also ensure the interviewee feels free to leave at all times and has close access to a doorway so a claim of “false imprisonment” can’t be logically alleged.
        2. Remove sharp or potentially dangerous weapon-like objects such as letter openers, and provide comfortable seating and lighting.
        3. If the office has a window, cover it up for privacy. People “freeze up” when they’re being interviewed “on display” and respond to a more intimate environment.
      • For interviews involving sexual allegations, or for any opposite-sex interviewing, always include a witness the same sex as the accuser or interviewee; preferably, it would be a trusted member of management not a party to the issue.
    2. YOUR ATTITUDE IS CONTAGIOUS: The people you interview will most likely assume some derivative of the very attitude you project; if you’re confrontational, expect to receive the same.
      • Do not prejudge the interviewee. Relax, and keep an open mind.
      • Calmly explain the purpose of the interview, and your role as a fact gatherer.
      • Do not box yourself into a certain time frame for the interview, and do not allow an interviewee to rush you by starting an interview with a cut-off time. If someone says, “I have to pick up my kid after work so we have to be finished in half an hour,” you should tell the interviewee that other arrangements should be made; have a trusted relative pick up the children or reschedule the meeting for another time.
      • Let people being interviewed know you have no personal or professional stake in the outcome, and that you are willing to listen to whatever they wish to tell you, but that their statements will be checked out thoroughly.
      • It’s okay to smile, to be friendly and approachable even when the circumstances are tedious, disheartening, or job-threatening.
      • Make excellent eye contact, and, if need be, ask for the same from the interviewee.
        1. If the person you’re interviewing stares at the floor, wears a cap pulled down over his eyes, or dons dark sunglasses, then don’t begin the interview until the situation is corrected. Example: “John, this is an important meeting and we have some basic rules of communication here. I promise to give you a great deal of respect, to hear whatever you have to say about this, and to look you in the eye like a gentleman the whole time we’re together…and I expect the same in return, so please take off the sunglasses for this meeting. Thank you.” It works; in 30 years, I’ve never had anyone refuse.
        2. The usage of a disarming amount of civility and respect is more powerful than all the bullying in the world.
      • The first guy to get mad loses.
        1. Keep that in mind at all times; you are not there to have a personal battle with anyone; you’re there to bring out the best in the other person.
        2. That may mean setting aside your personal feelings for the duration of the interview.
        3. Justice will prevail in the end; you will write your report and include any insulting statements or behavior thrown your way. However, if you take the bait and get angry, your raised anxiety level will work against you from that moment forward.
      • Listen with your ears, your eyes, even your heart.
        1. The other party can feel your sensitivity, your interest in a thousand almost imperceptible ways. I was taught many years ago, I think in Psychology 101 at the University of North Texas, the human being is likened to an amoeba with thousands of antennae all over its body, each trained to pick up the subtlest clues to another person’s attitude. Remember that, and have a good attitude so those antennae don’t work against you!
    3. DOCUMENTATION IS VITAL: It’s not just what you know; it’s what you can prove that counts.
      • If you’re working with an attorney, and the written results of your meeting is to remain Attorney Work Product or Attorney Client Privileged, it’s important to discuss with the lawyers before the meeting exactly how they wish to have the meeting documented, if at all. At the very least, they will probably want your notes from the meeting.
      • Take very good notes during the interview.
        1. Catch key phrases, use quotation marks around ver batim captures as you talk with the interviewee.
        2. Do this as inconspicuously as possible; the more time you spend writing, the less eye contact, resulting in reduced connectivity.
      • If possible and if authorized by the lawyer, it’s often good to get a statement from the interviewee.
        1. It can be written, tape recorded (with permission) or both. We often do both, and end up with statements of fact, taken under the penalty of perjury. This places our clients and their attorneys in a very strong position if, at a later date, the interviewee changes the story.
        2. We’ve had tape recorded statements played in open court to refute the testimony of an interviewee who lied on the stand to try to stay out of jail or help a friend in trouble. The attorney had the remarkable pleasure of asking the witness, “On which date, Sir, did you commit the crime of perjury? Was it the day you gave the tape recorded statement of fact to our investigator, or here, today, in front of this judge and jury?”
      • While it’s never easy for a beginner to obtain great interview results, especially when investigating crime in the workplace or sexual harassment allegations, it gets easier with experience.
        1. Your documentation will improve, too, as you conduct more and more interviews. The main thing is to synopsize the interview as factually as possible.
        2. Dig for fine details, times and dates, and other witnesses.
      • Inasmuch as possible, avoid writing conclusions unless specifically asked by the attorney.
        1. Provide information and documentation which will lead readers to form the same conclusion as the interviewer; it’s not that hard. If a person seems to be less than truthful, for instance, it’s not a good idea to write in your notes, “I think she lied to me today.” Much better, and less subject to emotional, negative and heated third party scrutiny, you could have written, “When she answered the questions about her own possible involvement in the matter, she ceased making eye contact, fidgeted in her chair, and spoke in a much lower tone of voice. Additionally, she contradicted herself by answering the same question three different ways, as follows: . . . etc.”
      • Carefully keep the interviewee focused on the subject, and steer the discussion away from “conditional” phrases, such as, “I might have taken a few things from the locker room.”
        1. You need to tell the interviewee to be more specific; don’t be afraid to ask the person to remove the “might” to give you a clear confession of theft, for instance. But always do it with a relaxed, kind attitude. The same goes for documentation; a written “confession” that includes the words, “I might have stolen” is essentially worthless. In other words, you will do well to unconditionally refrain from taking “conditional” statements.

    CONCLUSION:

    It’s always good to remember the basics when interviewing employees as either subjects or witnesses during an investigation, and we hope these guidelines are helpful.

    When the stakes are especially high, consider calling in experts comfortable with interviewing people regarding the most serious, even criminal offenses. Outside investigators tend to insulate Management from appearances or allegations of bias; the outcome of a case is often best served by knowing when to conduct the interview yourself versus calling in experts. Stay well within your comfort zone, because when you are “in over your head,” the interviewee will invariably know and take advantage.

    We sincerely hope that, when you think of bringing in outside investigators, you will consider using our services. No firm in the United States has a higher level of performance in the area of interviewing employees in the work place than Diversified Risk Management, Inc., and we pride ourselves in maintaining the highest level of dignity and respect throughout the process.