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Interviews, Interpreters and Statements

                                                                             

William F. Blake, CPP, CFE

Blake and Associates, Inc.

Littleton, Colorado

            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 multi-cultural society like 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 necessary to interject a third person into the quest for information.  This creates another problem to be addressed.

            As communication is a two-way exchange between the speaker and the listener, it is important to be accurate in the interpretation of the speaker’s words.  When conducting the interview, it is important to remember that the job of the investigator is to determine whether or not an incident occurred and to identify a particular person as being the responsible party.  It is important to ensure that the focus of any interview is on the incident and not the alleged perpetrator.  Being impartial 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 that 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 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 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 his work

  +        A self-starter

  +        Skeptical

  +        Intuitive

  +        Energetic

  +        A 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, he sends a message to the person being interviewed that 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 inquiry.  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 where 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 respected or use unconventional and frequently repressive interview techniques.

            Cultural awareness is a key component of establishing a respectful rapport with the interviewee.  Because of cultural background differences, there may be those who are afraid of anyone who appears to have “authority” over them.  This may be caused by a uniformed officer, supervisor or manager, or the manner in which the interviewer speaks.  Family and cultural loyalty is also an influence to be overcome. 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 person is a considerable help in reducing the possible fears of the interviewee.

INTERVIEW METHODOLOGY

            The interview format and methodology should be known by all interviewers and interpreters prior to the start of the interview.  A second 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 use when it is desirable to change interviewers.  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 selecting 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 interviewers.  Regardless of stature, an interviewer with a calm, non-confrontational 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 interviewee.  The ideal setup is with the interviewee in a position where 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 distractions such as pictures and related items.  The interpreter should be seated in a position where he/she is not directly facing the interviewee, although he should be in a position where the interpreter can 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 interviewee that such equipment is being used.

            As a private investigator you are not required to advise an individual 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[1]:

  +        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 example, 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.

  +        Under the Supreme Court’s Weingarten decision, the following rules apply to investigatory interviews:

            ♦          The employee can request union representation before or at any time during the interview.

            ♦          When the employee asks for representation, the employer must choose from among three options:

                        1.         Grant the request and delay questioning until the union representative arrives;

                        2.         Deny the request and end the interview immediately; or

                        3.         Give the employee a choice of: (a) having the interview without representation or (b) ending the interview.

  +        If the employer denies the request for union representation and continues the meeting, the employee can refuse to answer questions.

  +        Employers sometimes assert that the only function of a union steward 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:

            ♦          The supervisor or manager must inform the steward of the subject matter of the interview; in other words, the type of misconduct being investigated.

            ♦          The steward must be allowed to have a private meeting with the employee before questioning begins.

            ♦          The steward can speak during the interview, but cannot insist that the interview be ended.

            ♦          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.

            ♦          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.

  +        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, can 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 investigatory, 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 steward, 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:        Yes.  The supervisor is raising the specter of increased discipline to coerce an employee into abandoning her Weingarten rights.

+          Can 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 steward 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 representation 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 alcohol, does Weingarten apply?

A:        The employee must be allowed to consult with a union representative 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 told she must participate in counseling with the human relations department.  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.  But if management gives a firm assurance that the meetings will not be used for discipline, and promises that the conversations will remain confidential, Weingarten rights would probably not apply.

+          Private Attorney

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

A:        No.  Weingarten only guarantees the presence of a union representative.

+          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.  But, if this represents a new policy on the part of the employer, 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 he insist on assistance from a union representative?

A:        Yes.  Although the employee may not be involved in wrongdoing himself, he risks discipline if he refuses to inform on others or admits that he was aware of illegal activities.  Because what he says at the meeting could get him into trouble, he is entitled to union representation.

+          Obstruction

 Q:       The company is interviewing employees about drug use in the plant.  If I tell my people not to answer questions, could management go after me?

A:        Yes.  A union representative may not obstruct a legitimate investigation into employee misconduct.  If management learns of such orders, you could be disciplined.

 

WHAT ARE THE RIGHTS OF A NON-UNION

EMPLOYEE  IN A UNIONIZED BUSINESS?

            For various reasons, it is not uncommon to have a mixture of union and non-union employees in the same business entity.  These individuals may have chosen not to be a member of the union.  Others may be excluded from union membership because of their supervisory or management positions.  These individuals do not have Weingarten rights.

            As a matter of fairness and to preclude potential allegations of impropriety, they 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 seated in a position where it is not possible for the interviewee and observer to exchange non-verbal 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 documented.  As 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 interview process.  If the interviewers 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 18 years of age, without the knowledge and permission of a parent or guardian.  When possible, this permission should be obtained in written format.  A parent or guardian is normally allowed in the interview room as an observer and does not participate in the interview unless requested to do so by the interviewer.

            Interviews with the elderly pose a different problem.  Because of their mental acuity, they may resort to chatter and digress from the issues.  For many of the elderly, the interview may be a temporary respite from loneliness and gives them an opportunity for interaction which is normally not available to them.  In the opposite extreme, 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 rarely used.  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 interrogatives of who, why, what, where, when and how.  The basic interrogatives should be applied to the interviewee’s response to each question to obtain the maximum information.  Every question should be structured to specifically obtain desired information but not 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 should have been “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 residence where there is not interference from office activities or family matters.  The purpose of this type of interview is to meet the interviewee in an environment where he feels at ease.   A “significant” witness 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 familiarity 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 example:  “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.  Following 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.  It is also important to identify what the interviewee did not say in response to a question.  The body language of the interviewee is an important indicator in the evaluation of the information and the interviewee truthfulness.  Body language is a good indicator of truthfulness as any parent with children will have experienced.

            The use of rapid-fire questioning is usually not a productive strategy.  It frequently leads to confusion, emotional tension, and destroys the established rapport.  The long pause—silence—may cause the interviewee to assume you are not satisfied with his answer and he may voluntarily provide additional information.        There may be some subtle signs of submission by the interviewee.  They include uncrossing arms and legs, neutral facial expression, leaning forward in a slumped position, paying attention to the interviewer’s words with occasional nodding, weeping or a generally defeated look.  These are not foolproof indicators as tension or personal problems may produce similar responses.

            The manner in which you end an interview will influence future interviews with other interviewees.  It is not uncommon for witnesses to discuss their interviews.  If an interviewee feels that he has been treated with professionalism and respect, it will have an impact on the attitude and cooperation of future witnesses.  They will be more cooperative and ready to assist rather than resist future requests for assistance.

            Never end an interview with a curt “O.K. Thank you”.  You should let the interviewee know you appreciate what they have done and that they have performed a valuable service.

 

USING AN INTERPRETER

            Because of the multitude of languages in the work force, and, in many cases, the limited English ability of some workers, external language expertise will be required.  An interpreter is not necessarily a translator nor is the translator an interpreter.  An interpreter deals with spoken communications and the translator with written documents.  Also, there are two types of interpretation techniques.  A simultaneous interpretation is through an ear piece and is spoken as the interviewee speaks.  A consecutive interpretation is one where there is a pause for the interpreter to repeat what is said by the interviewee.  The consecutive interpretation normally takes twice as long, while the simultaneous interpretation is more expensive.  The consecutive interpretation may restrict the sense of when to probe further in a particular response.

 

CHOOSING AN INTERPRETER

            Your choice of an interpreter and his qualifications will significantly affect the quality and quantity of information obtained.  The choice of an interpreter should not be restricted by the cost.  It is important to have the skills and qualifications to meet your requirements.  Recommendations for individuals who have previously provided interpretation services should be a significant qualifier.  In addition to relying on someone else’s judgment, the investigator must personally verify the prospective interpreter’s qualifications.

            The interviewer should talk directly to the interpreter to determine fluency in both languages.  The interpreter should be asked to orally translate written samples into both languages and in both directions.  The interview is not the time to decipher a thick accent.  It is important to ask for and check professional references and determine if the interpreter has a professional classification or certification.

            Language ability is not the only desired qualification for an interpreter.  Cultural implications must be considered.  In many cultures difficulties may arise if the age, ethnicity and sex are not compatible with the cultural norms of the interviewee.  In some cases, a woman, an extremely young person, or an interpreter of certain ethnicity could be counterproductive.

            The procedures to be used during the interview must be completely understood by the interpreter prior to the start of the interview.  It is extremely important that the interviewer totally control the interview and not let the interpreter interject extraneous comments or information.  A problem may arise when ethnic or cultural norms cause the interpreter to “fail” to provide “bad news” or some other information that he believes may be insulting to the interviewer or in order to avoid an argument.  The interpreter must be required to interpret the words spoken exactly as stated by the interviewee.  An interpreter’s summary is not acceptable.  The interpreter must not add any words to those spoken by the interviewer or explain part of a question to the interviewee.  If the interviewee has a question, the interpreter must tell the interviewer in the exact words spoken by the interviewee and not provide his own interpretation.

 

FINDING AN INTERPRETER

            Finding a competent interpreter may be difficult.  A primary source can normally be found through the court system.  They will know individuals who have the necessary expertise and are competent to testify in court.  Other sources are available through commercial interpretation services or through hotel business centers.  The hotel cost is normally more expensive and depends on the needed language expertise, such as a common European language versus a not as common language such as Urdu.  Costs vary with the language and the source of the interpreter.  In the United States a common language costs about $600 per day while a less common language may be $1200 or higher.

            In the international environment, the U.S. Embassy business center normally can provide advice on interpretation services.  In international areas, the prevailing local rate will be significantly different, depending on the area.  Less expensive rates may be obtainable through the U.S. Embassy.  If it is necessary to travel with an interpreter, the investigator will be responsible for all expenses, including a possible tip.

            On occasion, the interviewee may want to use his own interpreter.  This can be a money-saver for the interviewer but may be problematic.  There may be an existing relationship with the interviewee that may taint the accuracy of information transfer.  Even if the interpreter is provided by the interview, all measures taken to evaluate an outside interpreter should be employed to determine the interpreter’s qualifications and impartiality.

            The use of a family member or close friend may create problems.  Again, the qualifications of the interpreter may be questionable.  Additional problems also arise.  The neutrality of the interpreter and the confidentiality of interaction are absent.  Sensitive issues affecting family relationships cannot be addressed.  The interviewee may be reluctant to discuss sensitive issues in the presence of family members and friends because of embarrassment and other reasons.  The money spent for an impartial interpreter is well spent.

 

OBTAINING WRITTEN STATEMENTS

            The written statement is extremely valuable because it requires commitment to a specific set of facts and reduces the probability of later disputes and changes of information.  The use of a handwritten statement based on a request to “write down what you know” is unprofessional and leads to much extraneous information to the exclusion of that which is necessary.  On many occasions, the handwriting will be undecipherable and confusing, even if prepared by the investigator.  In this world of electronics, a laptop or notebook computer with a portable printer is the best approach.  The costs of such equipment are not exorbitant and are a worthwhile investment.

            The manner in which you obtain a computer-based statement depends on your computer skills.  Ideally, the statement is taken simultaneously with the spoken word.  Otherwise, it may be taken from notes or through a slower process of reducing the interviewee’s words to writing.  Whenever possible, the words spoken by the interviewee should be used.  When a clarification is required, an additional question should be asked.  The use of unfamiliar terms and idiomatic anomalies needs explanation.  The interviewee’s language should not be sanitized because of vulgarity, profanity or insulting language.  Remember—it is the statement of the interviewee and not the investigator.

            The statement must stand on its own and include all information necessary for proof in a court or litigation.  Any notes taken during the interview, regardless of the type of statement, must be safeguarded for court purposes.  If the investigator is a Notary Public, the interviewee may be asked to swear or affirm that the information is true and correct to the best of his knowledge and belief.

 

WHAT IS AN APPROPRIATE STATEMENT FORMAT?

            The statement should include the beginning and ending time and date of the statement.  This information can either be placed at a single location within the parameters of the statement form or separately at the beginning and ending of the statement.  It should also show the location where the statement was taken.  The page number and total number of pages should be reflected on each page.

            The following recommended statements should appear on the statement form:

+          As an introductory paragraph:  I (interviewee), residing at (complete address), telephone number (work, residence and cellular), date of birth, having been informed by (investigator’s name) that he is a private investigator and not a law enforcement officer and is conducting an inquiry on behalf of (client’s name), freely and voluntarily make this statement.  No offer of any benefit or reward has been made to me and no one has threatened me to make this statement.”

+         On top of each continuation page:  Statement of (interviewee) taken at (location), dated (current date) continued:

+         At the end of the final page:  “I have read this statement that begins on Page 1 and ends on Page __.  This statement is true and correct to the best of my knowledge and belief.  I have initialed all corrections and signed the bottom of each page.”

+         If the statement is notarized: 

State of _______________

County of ______________

Sworn and subscribed to before me (Notary’s Name), at (location) by (interviewee’s name), this ____ day of month, year.” 

Printed name and signature of Notary, Notary Stamp and My Commission expires (date).

 

SUMMARY

 The art of successful interviewing is not easily learned.  It requires practice and interaction with many different personalities and situations.  Using an interpreter creates additional problems.  An understanding of the interviewee’s culture, education level and environment will facilitate rapport with, and cooperation from, the interviewee.  The use of confrontational techniques should be a last resort.

_______________________

Mr. Blake is a retired United States Army Criminal Investigation Command Special Agent and has over 50 years experience as a military, corporate and private investigator.  He is a member of Intellenet.

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