As an ethics and compliance professional and investigator, I have been intrigued by the recent media coverage of wrongful convictions. Also, the stories reminded me of a fascinating article in the New Yorker magazine a few months ago that examined wrongful convictions in cases where the investigators used the “Reid Technique” to interview suspects. Since reading that article, I have been ruminating on how important interviewing technique can be—and how flawed techniques and/or over-reliance on body language can lead to inaccurate conclusions.
Here are a few thoughts on interviewing in the context of workplace investigations:
Body language, while important, often is not all that it’s cracked up to be.
Body language can be over-emphasized. As the New Yorker article pointed out, even well-trained investigators can misread what they think are signals of lying. And, by focusing too closely on body language, investigators can miss important information being communicated by the witness’ verbal responses. Indeed, the words chosen and the overall verbal demeanor of the witness can be at least as revealing—and often more so—than the physical clues of body language.
For example, long pauses, extra emphasis placed on certain words, answers that seem to respond to a question but actually avoid the specific question asked, etc. – all can signal that the witness is trying to avoid revealing certain information. Listening for these demi-answers can alert the investigator to topics that he/she should explore further. It is by digging deeper that important evidence often is discovered.
The power of verbal responses has been demonstrated in a series of recent experiments. For example, in one experiment, people (including police officers) did better at identifying true confessions from false ones when listening to an audio recording of an interview than they did when viewing video recordings of interviews. In other words, seeing the witness and his/her body language led to less accurate conclusions than relying on the verbal responses alone. Consequently, when I teach investigation seminars, we spend a significant amount of time focusing on verbal demeanor and how it can be a powerful guide.
The investigator should not be trying to prove anything.
In an internal workplace investigation, the role of the investigator is to determine what actually happened—not to prove that the underlying allegation is true or false. As a result, a core duty is to identify evidence that supports the allegation as well as evidence that rebuts it. Only after we have gathered all of the evidence should we be determining what we believe actually occurred.
Human nature often gets in the way of this neutral role. All too often, we believe—based on past experience and common wisdom—that we know where the investigation is headed. We’ve seen it all before, we think. The danger with this (often unconscious) thought process is that we begin to form a theory of what happened and then seek evidence that will prove us right. At this point, we cease being truly neutral and instead are pursuing a particular outcome. It is difficult—but essential---for the investigator to keep an open mind throughout the investigation.
We don’t need to make the accused admit what they did.
It makes sense that in criminal cases, where the prosecution ultimately will need to prove its case “beyond a reasonable doubt,” confessions can be very helpful. But in workplace investigations, obtaining an admission is not nearly as important. Indeed, pressing for an admission can be counter-productive.
A better approach is simply to let the evidence reveal what happened. That is, once you have collected all the evidence, weigh it to assess what, in aggregate, it shows. If you have one witness who contradicts another, judge the credibility of the witnesses using credibility determination factors. (A common set is: plausibility of the witness’ statement, the witness’ demeanor (verbal and physical), corroboration, motive and past record.) If the evidence ultimately shows that the accused did, in fact, do what is alleged, there is little value in making him/her admit it—and, by pressing the issue, you sometimes inadvertently give the witness an opportunity to change his or her story. It is far better to simply rely on the evidence to reach your conclusion and then clearly communicate the reasons for your conclusion in your investigative report.