Conducting Whistleblower Investigations – Part 3: The Interview

In conjunction with International Fraud Awareness Week, we are running a series of blog posts by our Investigations & Fraud Risk Management practice leaders. For more on the topic, and to listen to our recorded webinars, visit www.protiviti.com.

Scott Moritz - Protiviti NY 2013 (hi res) (2)

By Scott Moritz, Managing Director, Investigations & Fraud Risk Management

and James Gibson, Director, Investigations & Fraud Risk Management

 

In our previous two blog posts, we provided general advice on preparing an investigative plan and discussed the value of triaging allegations by performing some basic investigative steps to evaluate the credibility of the complaint as a first stage. Below, we focus on the third and crucial stage of the investigation, confronting the subject in an investigative interview.

When Should You Perform the Interview?

One of the most common mistakes in internal investigations is rushing to perform an admission-seeking interview before the facts have been collected. This can be damaging to the investigation for several reasons. First, it alerts the subject or subjects to the suspicion and affords them an opportunity to alter their actions, destroy or alter evidence or otherwise disrupt the investigation. Second, it tells the subject how much the interviewers actually know. If the interview is performed before enough proof is gathered, the subject can easily explain away the allegation leaving the interviewers with nothing to confront him or her with in terms of documentary or testimonial evidence. Finally, jumping the gun on the interview removes any incentive for the suspected individual(s) to cooperate with the investigative team, while they may be more inclined to do so if they believe that you have enough evidence against them and that cooperating may limit their potential exposure to criminal or civil liability.

You will very likely only get one chance to conduct an interview of your subjects and so it is better to resist the impulse to pull the interview trigger early. A wiser course of action is to wait until you have reviewed all of the available evidence and prepared for the interview as much as possible to get maximum results.

Who Should Lead the Interview?

Whether it is a witness interview or an admission-seeking interview, part of the investigative planning process requires that there be a candid self-assessment of the internal team to gauge whether they have the skills necessary to conduct the interviews successfully. Former law enforcement officers, prosecutors and litigators usually have the needed skills due to their years of experience interviewing suspects and witnesses – however, not every company has people with this background in-house. If you don’t have a person with the right investigative interview skills, outside help is your next best option.

Establishing Rapport With the Subject

Ever heard of “good cop”? Most interviews go better when some level of rapport has been established. If someone is being interviewed purely as a witness, let them know at the beginning to relieve any tension or nervousness that they may feel. Have a list of the topics you want to review with your witness, bring any supporting documentation you want to discuss and seek the witness’s commentary on it – it may be of use to you when you confront the suspect.

Establishing a rapport with your subject may be more challenging but is equally important. Allaying the person’s concerns, dispelling misconceptions on how an interview might be conducted, finding common ground and being matter-of-fact with your questions all can contribute to a more productive interview. Establishing a rapport could also help your subject to view you as someone they need in order to navigate the unfamiliar territory of being the focal point of an investigation successfully, and cause them to be more cooperative as a result.

For both witnesses and suspects, in-person interviews are much more productive than telephone interviews since so much of communication is non-verbal. Experienced investigators are very attuned to the physical cues of interview subjects, especially when a question is uncomfortable or the subject is being deceptive.

Choosing the Location

The location of the interview can influence both the results you get and the way the investigation proceeds. Should you conduct the interview in the office, where your subject may refrain from being too candid, or a neutral location where they may feel more even-footed? Is it in the interest of the investigation for the interview to be conducted where everyone can see or should you take steps to keep it away from public view? The answers to these questions will vary based on the type, level and purpose of your investigation.

Who is in the room also matters. Most interview subjects are less comfortable discussing improper activities before a high-level company representative or an attorney. If an in-house attorney is in attendance, there may be a need to administer an Upjohn warning, a sort of corporate Miranda warning, in which the attorney advises the interviewee that the attorney is representing the company and not the subject as an individual. Upjohn warnings can often have a chilling effect on the interview, leading to a lower level of cooperation or, in some cases, to an abrupt halt.

Interviewing Union Members or Third-Party Employees

A collective bargaining agreement between a union and a company, if it exists, may limit the company’s ability to conduct investigations of union members. Members of a labor union may have to be interviewed according to the conditions set forth in the agreement. More frequently, union members attend interviews with their union representative or shop steward who are there to advocate for the union member.

When interviewing employees of third parties, such as suppliers or vendors, having a representative from the company on whose behalf the investigation is conducted can help convince the subject that this is a serious matter that could have implications for the supplier’s continued relationship with the company. Ideally, the company representative should be someone that the interviewee knows and believes wields some influence over the relationship between the company and the supplier.

In conclusion, and back to our football analogy, the interview is your game day. Like the game, the interview tests your readiness for getting into the “end zone” and will result in as much success as you’ve prepared for. Choosing the right setting, establishing a rapport with your subject and making sure that you select your questions carefully and are in a position to counter any false exculpatory statements will sharply increase your chances of obtaining the valuable information you need for your investigation – and help you act like you’ve been there before.

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