Investigative Interview Techniques Christopher Haney, CPA, CFE and Andrea Roller, Esq

Investigative Interview Techniques Christopher Haney, CPA, CFE and Andrea Roller, Esq.

1. Overview Whether you are interviewing the primary successful interview. We then discuss the subject of an investigation, a victim, or a commencement of the interview and Interviews represent the most basic and peripheral witness, it is crucial that the methods to establish rapport with the human element of any investigation. Diligent interview is conducted in a thorough and interviewee. We will also discuss the goals interviewers constantly search for a complete professional manner. Engaging in anything and approaches to both investigative and and truthful telling of events. Whether you are less may expose the investigation to the risk behavioral questioning. Finally, we will offer a law enforcement officer, an investigative its findings and conclusions are found less best practices for consideration as you reporter, or simply a parent negotiating a than credible or are ultimately excluded as conduct your own interviews. family dispute, investigative interviewing skills evidence. In a successful interview, the help you to efficiently and reliably determine process is as important as the results. This article is not intended to render you an the events and motives at hand. This article expert on investigative interviewing. With seeks to highlight the best practices of We begin this article by addressing the that said, the tactics and considerations interviewing techniques and to provide you quality standards incumbent on investigative discussed can be helpful to both novice and with a variety of considerations and tools for interviewers. We also identify best practices seasoned investigators. Remember, your next interview. for interview preparation to ensure the interviews are more of an art than a science, proper foundation is in place for a and the goal of this article is to offer you additional tools as you practice your craft.

Inside 2 3 4 5 6 7 Importance of Quality Preparation Warnings and Building Rapport Investigative Behavioral Analysis Representation Questions Conclusion Investigative Interview Techniques

2. Importance of Quality the framework for assessing a corporation’s role, and its eligibility for cooperation credit.2 Questionable interview Effective interviewing has always been a Among the thirteen factors, five are directly techniques identified: key tenet of thorough and comprehensive related to investigations and interviewing: investigations. That mantra was emphasized “In one investigation, counsel in a 2011 speech by Robert Khuzami, Selected Seaboard Factors interviewed together the two Director of Enforcement, U.S. Securities 1. How long after discovery of the senior executives with exposure and Exchange Commission (“SEC”). misconduct did it take to implement an in the investigation, and let one Director Khuzami underscored questionable effective response? serve as document custodian tactics employed by counsel during internal with full and unsupervised access investigations, specifically addressing a 2. What steps did the company take upon to all documents related to the variety of dubious interview practices. learning of the misconduct? Did the investigation and the ability to Director Khuzami also noted the SEC’s new company immediately stop the destroy them.” misconduct? Are persons responsible for Cooperation Program, which provides for -Robert Khuzami, Director, Division any misconduct still with the company? If reduced, or even no sanctions, in return for of Enforcement, SEC diligent self-policing or assistance in an so, are they still in the same positions? SEC investigation.1 The moral of Director Did the company promptly, completely and effectively disclose the existence of Khuzami’s speech is clear; organizations 5. Did the company promptly make available the misconduct to the public, to regulators risk losing cooperation credit by not to our staff the results of its review and and to self-regulators? Did the company conducting thoughtful and comprehensive provide sufficient documentation cooperate completely with appropriate interviews and investigations. The SEC’s reflecting its response to the situation? regulatory and law enforcement bodies? stance is consistent with a variety of other Did the company identify possible Did the company identify what additional criminal and regulatory enforcement agencies. violative conduct and evidence with related misconduct is likely to have sufficient precision to facilitate prompt When considering the specific factors used occurred? Did the company take steps to enforcement actions against those who to assess the quality of interviews, a variety identify the extent of damage to investors violated the law? Did the company of standards exist. For the purposes of this and other corporate constituencies? Did produce a thorough and probing written article, we find it useful to consider the the company appropriately recompense report detailing the findings of its review? factors utilized by the SEC, given the those adversely affected by the conduct? Did the company voluntarily disclose Commission’s broad enforcement information our staff did not directly capabilities and the recent public focus on 3. What processes did the company follow request and otherwise might not have interview techniques. The Commission to resolve many of these issues and ferret uncovered? Did the company ask its commonly refers to the 2001 case of Gisela out necessary information? Were the employees to cooperate with our staff and de Leon-Meredith, the controller of Chestnut Audit Committee and the Board of make all reasonable efforts to secure Hill Farms (a subsidiary of the Seaboard Directors fully informed? If so, when? such cooperation? Corporation or “Seaboard”). This case 4. Did the company commit to learn the highlights the significance of effective truth, fully and expeditiously? Did it do a Inherent in the SEC’s decision to not seek internal investigations: despite concluding thorough review of the nature, extent, enforcement action against Seaboard, were that de Leon-Meredith caused Seaboard origins and consequences of the conduct effective interviewing techniques. Corporation’s books and records to be and related behavior? Did management, Seaboard’s management commenced a inaccurate, the SEC nonetheless took no the Board or committees consisting solely robust internal investigation and was action against Seaboard, finding instead that of outside directors oversee the review? entirely forthcoming with the SEC. The Seaboard’s robust and proactive response Did company employees or outside result was extraordinary: the SEC took no mitigated the need to seek enforcement persons perform the review? If outside enforcement action against Seaboard. against the company. persons, had they done other work for the While not all SEC inquiries will have such favorable conclusions, without an effective The SEC utilized a thirteen point analytic company? Where the review was investigation and quality interviews, this framework to assess Seaboard’s actions conducted by outside counsel, had result would be unachievable. and its response when considering management previously engaged such enforcement actions. These factors, known counsel? Were scope limitations placed as the “Seaboard Factors”, continue to be on the review? If so, what were they?

1. Khuzami, Robert S., “Remarks to Criminal Law Group of the UJA-Federation of New York,” U.S. Securities and Exchange Commission, June 1, 2011.

2. Matter of Gisela de Leon-Meredith, Exchange Act Release No. 44970, October 23, 2001; Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934 and Commission Statement on the Relationship of Cooperation to Agency Enforcement Decisions, Release No. 44969, October 23, 2001.

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3. Preparation Personnel As will be discussed shortly, building Many interviewers combine A decisive component of any effective rapport can greatly increase the interview techniques with interview is preparation. In addition to cooperation and truthfulness of an interrogation tactics. having a well-developed understanding of interviewee. To maximize rapport, consider the issues at hand, the interviewer should which personnel should conduct the INTERVIEWS strive to prepare for the following: interview. Demographic factors, such as yy Non-Accusatory age or sex, may be appropriate Strategy y considerations as well as potential y Fact Seeking Develop an overall strategy for the similarities in background or socioeconomic yy Conversational interview, including the interview’s purpose status. While these factors are not always in the grander investigation and the specific under the control of interviewers, the costs INTERROGATIONS objectives for the interview. Particularly at and benefits should always be considered. yy Guilt is suspected the outset of the investigation, interviews may be less scripted due to lack of case- Setting yy Accusatory specific knowledge. That does not exempt The concepts of privacy and proximity are yy Confession Seeking the interviewer from establishing clear key considerations when choosing the ideal goals for the session. Questions that must interview setting. Privacy considerations These are not interchangeable! be considered prior to the interview affect an interviewee’s ability to answer include: Are these interviews fact seeking, questions openly and truthfully without fear or is the intent to develop the interviewee of eavesdropping. Proximity deals with an Concurrent interviews may also be into a potential source? Are you seeking an interview’s location relative to the advantageous if you suspect collusion alibi? Should you tell the interviewee they surroundings. For example, interviewing among interviewees. Such concurrent are a target of the investigation? employees in a centrally located conference interviews prevent “comparing notes” and it room may invite undue scrutiny and is often a powerful statement to remind Scenario Planning attention to the interview process. subjects that their associates are telling Always consider a variety of potential Minimizing anxiety associated with privacy their version of events at the same time. avenues the interview may take. and proximity concerns will likely yield more Interviewers who become distracted or productive interviews. Thorough preparation allows the interviewer surprised by various details, have difficulty to manage the interview and evaluate the focusing on the interview objectives. Sequencing witness’ responses, rather than expending Rehearsing potential interview responses, A key consideration when conducting effort to react to the interviewee. While along with the appropriate reactions, help multiple interviews is the order and timing preparation alone is not enough, well- interviewers to maintain control and ensure of such interviews. Consider if it is prepared interviewers are much better events and facts are fully captured. advantageous to gain facts from witnesses suited to focus their efforts on questioning, prior to approaching a suspect, or whether responding, and evaluating interview the risks of alerting suspects may outweigh subjects. the data gathering requirements.

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4. Warnings and referred to as “Corporate Miranda”. These warnings may be necessary whether Sample Upjohn Warning Representation interviews are conducted by the company’s counsel, outside counsel, or their agents. “I am a lawyer for XYZ Corporation. I In many interview settings, interviewers Named after the United States Supreme represent only XYZ Corporation and must clearly disclose certain information Court case of Upjohn Co. v United States, not you personally. I am conducting and provide legal warnings regarding how the Upjohn warning informs witnesses that, this interview to gather facts in order evidence uncovered during the interview while communications with counsel are to provide legal advice for XYZ may be used. Though this article is not privileged, the company owns the privilege, Corporation. This interview is part of intended to offer a complete discussion of not the witness/employee. Specifically, an investigation to determine the facts the requirements and considerations of counsel for the company represents the and circumstances of X. various witness warnings, our goal is to company, not the employee, and therefore identify and discuss common warnings in Your conversations with me are the company dictates if and when the an effort to provide the reader with protected by attorney-client privilege. privilege is waived (i.e., to a government reasonable familiarity. But the attorney-client privilege authority, if cooperating in an ongoing belongs solely to XYZ Corporation, Miranda investigation). not you. That means XYZ Corporation may elect to waive the attorney-client Sworn public law enforcement officers may Representation be required to offer Miranda warnings in the privilege and reveal our discussion to Occasionally, after receiving these event custodial interviews are conducted. third parties. XYZ Corporation alone warnings, a witness may ask the interviewer Named after the United States Supreme may decide to waive the privilege at its whether he or she needs legal Court case of Miranda v. Arizona3, generally, sole discretion, without informing you.” representation. The interviewer should these warnings are not required of private always clearly disclose that the witness has individuals or security officers even in the the right to legal counsel; the decision is an event they make an actual arrest. Specific individual one to be made only by the Selecting the appropriate warnings and case rulings affecting Miranda warnings witness. The interviewer should never imply responding to questions about addressing private security officer or suggest that he or she represents the representations should be properly obligations include People v. Deborah C.4, witness legally and should avoid offering coordinated with the investigator’s counsel and People v. Ray5. any manner of legal advice. In the event a prior to conducting any interview. Regardless of the warnings offered, or the Upjohn witness chooses to continue the interview without counsel, that decision should be witness’ response, each should be clearly During interviews conducted in conjunction documented clearly in the interview notes. memorialized in the interviewer’s notes and with an internal corporate investigation, it If the witness elects to have counsel any confusion should be clarified before may become necessary to provide the present, which they may decide at any point resuming the interview. witness with Upjohn warnings, often during the interview, no further questioning should be pursued until counsel is present.

3. Miranda v. Arizona, 384 U.S. 436 (1966).

4. People v. Ray, 65 N.Y. 2d 282, 480 N.E. 2d 1065 (1985).

5. People v. Deborah C., 177 Cal. Rptr. 852, 635 P. 2d 446 (1981)

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5. Building Rapport witnesses may question your credibility and Interviewers should strive to minimize limit cooperation. Once again, the goal of physical barriers between themselves and After completing the steps of preparation, building rapport is to develop a safe the witness (i.e. tables, desk, or excessive the interviewer is able to begin a dialogue environment for the witness to feel space). These barriers can obstruct an with the witness. While the urge to comfortable sharing their knowledge of otherwise open environment, as well as immediately begin fact gathering is often events, which may be sensitive or minimize the amount of body language the overwhelming, we strongly recommend embarrassing. interviewer can observe. A technique we interviewers recognize the social and have commonly seen involves mounting a emotional implications the interviewee is Another goal of rapport-focused significant interview team opposite the experiencing. In addition to some degree of questioning is to establish a baseline for witness in an effort to intimidate or alarm anxiety about interviewing, many witnesses the behavioral symptoms a witness may potential subjects. While this method may are often apprehensive about the goals and exhibit when answering questions. These become necessary, we believe maintaining motivations of the interviewer, due to the symptoms will be discussed later in the an open and supportive climate yields more formality and potential repercussions of article, but it is important to note that the cooperative witnesses and intimidation investigations. initial stages of the interview are ideal for often causes counterproductive anxiety. establishing this baseline. For example, Developing a relationship with the witness introductory questions regarding Another technique for managing the is an often overlooked tactic to ease employment history or residences will likely physical barriers of an interview involves anxiety, improve a witness’ cooperation, illicit truthful responses and they allow the seat selection. In many cases, we place and increase the likelihood of open and interviewer to assess the witness’ interviewers at the head of a table truthful responses. Initial contact with the demeanor and response. This response immediately next to the witness. This witness can set the tone of an interview; can later be compared to more sensitive placement accomplishes several tasks: therefore interviewers must be mindful of investigative questions to help the even the simplest interactions, including interviewers gauge a witness’ truthfulness yy Minimize physical barriers by sitting scheduling the interview. Witnesses often and candor. next to one another; have preconceived opinions about the tone yy Reduce distractions by guiding the Developing rapport with a witness also and purpose for an interview, so the witness’ line of sight away from provides interviewers with a strategic interviewer should strive to develop an observers; open and non-judgmental environment. advantage, particularly for targets of an investigation. These “lifestyle” type yy Maximize the level of observable body Particularly at the beginning of an interview, questions often offer insight into the language. questions should be focused on developing motivations and values of a subject. Overall, your first interactions with a rapport with the witness. This includes Knowledge of these values may be useful witness will often dictate the success of asking simple and non-threatening for future negotiations or interrogations, future interview efforts. Based on these questions in a conversational tone. and they offer an investigator themes to considerations regarding rapport Straightforward questions regarding family consider during such discussions. development, effective use will better equip or hobbies may be useful to engage a interviewers to take advantage of a Finally, a commonly overlooked factor in witness. Much like interviewers, witnesses commonly underutilized portion of the establishing rapport is the physical setting can recognize insincerity. With this in mind, interview. it is important to be natural and genuine and layout of an interview. In addition to when developing rapport; otherwise, concerns about privacy and proximity, the interview setting can dramatically affect the level of anxiety experienced by a witness.

6. Upjohn Co. v. United States, 449 U.S. 383 (1981).

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6. Investigative Questions These questions are developed far in advance of the interview, based on careful Sample Investigative After developing rapport, interview topics preparation. The questions should begin Questions can then progress to investigative broadly and become narrower as the questioning. These types of questions are witness provides additional information. FACT COLLECTION The interviewer should allow the witness to the substance of investigative interviewing. Would you explain the steps required fully complete his or her answer. To establish a complete and thorough set of to issue a check? facts, the interviewer must diligently ask the questions. Though this task might seem The interviewer must remember the What exceptions exist? understood, we often see interviewers question he or she has asked, and ensure KNOWLEDGE OF EVENTS timidly approach sensitive topics regardless the witness has rendered a sufficient of their significance in the case. This answer before transitioning to a different What is your understanding of the cannot be allowed, and a thorough topic. If the witness is evasive and does not reason for this interview? directly answer the question presented, the investigator must actively seek the truth by How did you learn that? asking direct questions and probing for interviewer must be prepared to probe until a definitive answer is given. As a result of clarity. The successful collection of all INTERVIEWEE’S ALIBI pertinent facts is the standard by which all thorough preparation, the interviewer is Please tell me everything you did from interviewers must be measured. able to recognize that the witness’ answer is not complete and can continue to clarify 6 to 10pm last night. yy Investigative questions should be until he or she is fully forthcoming. Is there any reason you might have focused on accomplishing one of the opened the cabinet? following tasks: Investigative interviews also focus on determining a witness’s version of events. EVALUATE ACCESS yy Collect facts and understand the The interviewer must be cognizant of a process; witness’ changing story: while subtle Could you make a journal entry if you needed to? How? yy Assess interviewee’s knowledge of differences are common, major changes the events; may be an indication that the witness is not being truthful. By reading the witness’ prior yy Determine interviewee’s account or statements, the interviewer can assess While many interviewers believe they are alibi; whether the witness’ version of events has highly skilled in preparing and asking yy Assess the interviewee’s level of materially changed over time. In the search investigative questions, we find too often access; for details, place critical importance on that interviewers are not fully prepared to probe and clarify a witness’ responses. As yy Evaluate the interviewee’s tendencies special access the witness may have had to a result, witnesses often are not completely and motives. the events in question. For example, special access can either be specific knowledge truthful simply because the right questions (i.e., passwords, hacking skills, etc.) or were not asked. While this rationalization special means (i.e., a key card). cannot be accepted, it is the interviewer’s responsibility to implement a thorough and complete line of questioning.

7. John E. Reid and Associates, Inc., The Reid Technique of Interviewing and Interrogation, 2011

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7. Behavioral Analysis 8. Conclusion Sample Behavioral Behavioral Symptom Analysis, the Symptoms High quality interviews are the building systematic study of behavior symptoms to blocks of a sound investigation. This article identify the probable truthfulness of a LYING BY REFERRAL has sought to provide the reader with a witness, is an additional tool interviewers As I stated earlier… variety of tools and considerations for use may use in the evaluation of a witness. Like I told the other officer... in investigative interviews. In summary, best Behavioral analysis focuses on each of the practices include, first and foremost, three channels of communication: SPECIFIC DENIALS methodical preparation and a thoughtful I did not see him last Tue! assessment of the objectives. Such yy Verbal (actually saw him last Mon) preparation, along with a systematic and focused approach to conducting the >>Word choice and arrangement GENERALIZATIONS interview most often leads to successful yy Paralinguistic Typically, Generally, etc. and defendable interview results. >>Speech other than spoken word QUALIFIERS While no set of rules exist for the craft of as best as I recall yy Nonverbal interviewing, recent scrutiny has clearly >>Posture, movement, gestures BOLSTERING STATEMENTS shown that we must commit ourselves to I swear, Honest, etc. conduct interviews and investigations in a An interviewer should monitor the timely, thorough, and well reasoned manner. interviewee’s behavior throughout the With this charge in mind, we trust that course of the interview, and consider these tools and considerations will help you deviations from an established baseline. Word choice can also indicate a witness’ to improve your interviewing skills, and we While this subjective evaluation should not level of truthfulness. Deceptive witnesses thank you for your interest. be included in discoverable materials, such often use vague language, or overly specific as notes, transcripts, or final reports, these denials. At other times, a deceptive witness Best Practices Top 10 List observations may prove valuable to the may refer to previous statements to avoid interviewer when assessing the overall directly answering the question. This tactic 10. Take thorough notes and maintain credibility of a witness. is referred to as “lying by referral” and is the originals particularly cunning. Furthermore, 9. Do not make promises When assessing a witness, an interviewer deceptive witnesses may avoid giving should consider common truthful definitive answers in an effort to minimize 8. Maximize the advantages of rapport at¬titudes, such as being composed, the information disclosed. Truthful cooperative, direct, and sincere, as well as witnesses will engage in largely dissimilar 7. You run the interview, not the witness common deceptive attitudes, such as behaviors by providing definite statements or attorneys anxiety, defeat, or insincerity. These and minimal generalizations or qualifiers. symptoms may change throughout the 6. Know when to stop interview, at which point the interviewer Finally, deceptive witnesses often use should make note of the questions or topics bolstering statements in an effort to 5. Use your strengths and be sincere that may have caused a behavioral reaction. convince the interviewer they are giving 4. Do not bluff unless you are ready to Interviewers should also recognize that truthful answers. Truthful witnesses tend to be called symptoms such as nervousness, fear, or offer natural and spontaneous answers anger are common traits of both truthful without the need to convince the 3. Ask the tough questions and deceptive individuals. interviewer of their honesty. 2. Live with the answers, even if they Body posture can be another key indicator While the behavioral symptoms may be hurt your case of a witness’ truthfulness or deceit. Truthful particularly useful to a trained investigator, witnesses commonly have an up¬right it is critical that readers recognize the 1. Preparation is the key!! posture, and appear open and relaxed, limitations of such analysis. Behavioral while a deceitful witness may slouch or symptoms alone are not sufficient to retreat from the interviewer. Deceptive gauge the truthfulness of a witness, and witnesses may also attempt to invoke this analysis must be weighed together physical barriers such as crossed arms, with all other investigative data. Only then crossed legs, or hands in front of their face. can an interviewer have a complete picture of the facts.

Duff & Phelps | 7 About the Authors

Christopher Haney, CPA, CFE Chris is a Director with Duff & Phelps and specializes in financial investigations and forensic accounting. Previously, Chris was a member of the FBI’s Forensic Accounting Unit specializing in complex White Collar and Healthcare violations. Prior to joining the FBI, Chris spent five years at General Electric focused on internal investigations. Chris is a Certified Public Accountant, a Certified Fraud Examiner, and Certified in the Reid Technique of Interviewing and Interrogation.

Andrea Roller, Esq. Andrea is a Director with Duff & Phelps and specializes in internal investigations. Previously, Andrea was an Auditor and Special Assistant United States Attorney in the Economic Crimes Unit of the United States Attorney’s Office. Prior to working for the Department of Justice, Andrea was a Senior Commissioned Bank Examiner for the Federal Deposit Insurance Corporation in both the Legal Division and the Division of Supervision and Consumer Protection.

Special thanks to Jonathan Waldron of the Duff & Phelps research team.

About Duff & Phelps Contacts As a leading global provider of financial M&A Advisory services in the United Christopher Haney, CPA, CFE advisory and investment banking services, Kingdom and Germany are provided by Director Duff & Phelps balances analytical skills, deep Duff & Phelps Securities Ltd. Duff & Phelps [email protected] market insight and independence to help Securities Ltd. is authorized and regulated by +1 312 697 4520 clients make sound decisions. The firm the Financial Services Authority. For more provides expertise in the areas of valuation, information, visit www.duffandphelps.com. Andrea Roller, Esq. transactions, financial restructuring, (NYSE: DUF) Director alternative assets, disputes and taxation, with [email protected] more than 1,000 employees serving clients +1 617 378 9420 from offices in North America, Europe and Asia. Investment banking services in the United States are provided by Duff & Phelps Securities, LLC. Member FINRA/SIPC.