Interrogation Safeguards

TASA ID: 2483

An article entitled, "WHEN EMPLOYEES CONFESS, SOMETIMES FALSELY" appeared in the business section of the March 9, 2014, edition of The New York Times.  It discussed the interrogation of employees suspected of misconduct, mainly theft, by private persons acting in an employer's behalf, pointing out that confessions, when obtained, are not always true or necessarily accurate.  Rather, they result from what might best be described as questionable interrogation techniques.  The article did not discuss legal action that might be taken by an employee subjected to an interrogation, whose reputation is sullied thereby, against his or her employer.

No business can ignore the need to protect its assets and prevent losses.  In fact, the fiduciary relationship between corporate officers and stockholders in businesses whose stock is publicly traded, virtually compels them to have security programs, but rather than implement effective overall loss prevention measures, many tend to focus on crime prevention.  For them, the ability to quickly identify and punish those responsible for losses is considered the most effective deterrent.  However, the focus on speed frequently sees interrogation as the key to solving problems.  This fails to take into account the fact that interrogations are part of investigations; standing alone they are not investigations.  This aggressive approach is quite common, especially among, but not limited to retailers. 

When losses occur, investigators look at those employees who would have the motive, opportunity, and means to commit the offense as the logical perpetrators but they dare not presume guilt based on these criteria alone.  No good investigator undertakes any investigation with any presumption of guilt or innocence.  That conclusion will be determined primarily on the basis of the facts (evidence) developed in the course of a thorough, objective investigation.  Interrogations are part of the investigative process but the question is by whom, how and when should they be conducted.         

Interrogations usually are conducted by an employer's security personnel or outside "consultants" who, not surprisingly, have some law enforcement experience.  However, in many instances the results suggest that what they were accustomed to as public sector employees dealing with the subjects of investigations is forgotten or ignored when acting privately.  Overlooked is the fact that safeguards required of them to protect the rights of persons in custody actually help protect their agencies as well.  Thus logic dictates that protecting the rights of persons being interrogated by an employers' agents would also help protect the employer. Therefore, a modification of the same safeguards employed by the public sector would serve to protect private employers as well and would help strengthen their cases. 

One cannot overemphasize the fact that an interrogation is part of the investigative process; it is NOT an investigation.  Consequently, they should be conducted at or near the end of an investigation, not at its beginning.  Often, this is not the case.  Instead, a problem is detected and logically an employee then becomes the investigation's focal point.  Anxious to "close" the case and quickly deter additional losses, a confession gotten from the "subject" followed by some form of disciplinary action, would be ideal.  However, this ignores a cardinal principle of the investigative process: no investigator should ever undertake an investigation with any preconceived ideas of guilt or innocence.  Only on the basis of the evidence developed during an investigation can such a determination be made and it is not the investigator's job to make it. 

Upon receiving a report that evidence of a problem exists, it is then incumbent upon the investigator to determine the facts by collecting and preserving all demonstrative and testimonial evidence within what limits may be imposed by law.  This includes statements from everyone in a position to provide information substantiating the problem's existence, as well as from those familiar with that particular aspect of the employer's business, and/or who know the suspected employee.  All pertinent records must be reviewed for information on the person now the subject of the investigation, as well as the business process or employer's policies upon which the alleged problem itself is based.

It is only after the investigation has been completed, and the investigator has in hand all of the evidence, that the suspected employee (subject) should be interrogated for a confession.  In this respect it is worth keeping in mind the comments of an FBI instructor to a class of new Special Agents: If you have done your job correctly the case should stand on its own without a confession and if you do get one, consider it icing on the cake. 

In preparing for the interrogation the investigator must remember two things: (a) any confession, if one is obtained, should be admissible in court and (b) the way in which it is obtained must protect the employer against possible costly and embarrassing litigation.  The interrogation should take place in an office where there will not be any distractions or interruptions and it should be conducted by the case investigator but with another investigator present.  Whenever possible at least one of the two investigators should be of the same sex as the subject (suspected employee) and in all cases the entire interrogation should be recorded and filmed.

So there can be no misunderstanding from the outset, the investigator should introduce both him or herself and the other investigator by name and title.  Next, the subject should be told in general terms the reason for the interview.  Next, the subject should be given what might be called a modified Miranda warning: subjects should be told they are free to leave the interview any time they want to, they are under no obligation to answer any questions asked of them, whatever they say must be voluntary, and if they need go to the toilet or want anything to eat or drink they will be accommodated. 

Although not required of private persons, a "modified Miranda" is a safeguard for investigators and their employers especially in cases where the subject will be terminated or, at the very least, disciplined.  It will refute post interrogation allegations that the investigator and employer were guilty of false arrest and/or false imprisonment or, if a confession was obtained, that it was in response to threats or promises or made under duress. 

Individual investigators have their own interrogation techniques, often confronting subjects in an accusatory way with a barrage of questions, some of which have no relation to the actual investigation, yet are designed to implicate the person in some form of misconduct and get what is tantamount to corroboration.  However, over time it has become increasingly evident, even to sworn law enforcement personnel, that being a good listener is essential to getting a confession.  The subject, having been given an idea at the outset as to the purpose of the interview, is far more likely to respond if asked for his or her "side of the story" than if confronted with a barrage of questions.  S/he welcomes a chance to try to "explain" and refute the allegations.  At the same time, the completed "explanation" now enables the investigator to confront the person with whatever discrepancies exist between the explanation and evidence obtained during the investigation.

If a confession is obtained, it should then be played back to the subject with the caveat that this is the person's opportunity to review the entire process for the sole purpose of correcting any mistakes or making other changes.  The last step in the recording before it is clearly marked for identification should be a statement by the subject acknowledging that the confession was given freely and not in response to any threats or promises.

Even though the entire interrogation is recorded, regardless of the results, the investigator should prepare a written report setting forth the details of the investigation from its inception through the interrogation and its closing.  An inventory of all evidence, the interrogation included, should be appended to the written report and copies of both should be submitted to the subject's manager and the employer's human resources manager for whatever disciplinary or other action may be deemed appropriate under the circumstances. 

Virtually all businesses and institutions suffer losses.  Those whose security programs are business-oriented will have dual purpose investigations: to identify both those responsible for the losses and the conditions that allowed them to occur so corrective action can be taken.  For success on both counts it is necessary for security personnel, and investigators in particular, to be above reproach.  Consequently, to maintain the investigators' and investigation's objectivity and integrity, under no circumstances should investigators, whether security department members or outside consultants, participate in the decision making process where employees are the subjects of an investigation.                                  

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.
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