Catching people doing the wrong thing – or verifying the contrary – is what investigators do. And while external investigations conducted by law enforcement agencies and internal investigations conducted by in-house or by outside counsel share that goal, the methodology of gathering evidence from human sources must be very different in the critical area of gathering information from real people.
In any investigation, questionable data and numbers are invaluable. They raise red flags and point in various directions that the inquiry may take. E-mails, texts, and letters can give context to suspicious conduct. But it is almost always the human component that confirms the worst fears or best hopes of the Board, Audit Committee, CEO, or General Counsel. In the absence of a signed confession – “Yes, I bribed the local customs official, made our division’s sales numbers, got my bonus, and am now off for parts unknown!” – only a living, breathing person or two or more can pull it all together and make an investigation make sense.
Employee and third-party interviews, then, are at the apex of any probe. Their results can make, break, or bog down the investigation. And the different pressures that may be brought to bear when these interviews are conducted by law enforcement personnel versus specialized investigations counsel and their staffs set the tone for these conversations and determine the likelihood of their being fruitful.
Plainly put, law enforcement “interrogates” suspects and witnesses, while everyone else can only “interview” employees and third persons. That makes for a big difference in tone, tactics, and results. It also means that non-law enforcement investigators have to work harder and smarter to get answers to their questions.
Interrogation has an innate, coercive component to it. Fourth, Fifth, and Sixth Amendment protections notwithstanding, there is an oppressive feel to questioning by government agents that is felt intuitively by most people. The David versus Goliath match-up is not so metaphorical, particularly when those being questioned are aware of the implicit – if not, explicit – threat of arrest and prosecution for whatever transgression that law enforcement can see and get past the giggle test of a Grand Jury.
Suffice it to say that it is much easier to get answers and cooperation when the interrogator is perceived as holding the keys to a jail cell and/or the poor house. Even the dimmest bulbs are usually recognize the fact that while a judge might say they were right on Monday morning, a government agent asking questions is judge, jury, and executioner on Friday night. That gets subjects motivated and questions answered.
Alternatively, outside counsel does not have much coercive force to bring in getting human cooperation in an internal investigation, save for the possibility of job losses that may be felt or even acknowledged to witnesses or suspected wrongdoers. In suggesting how to play that weaker hand, The Company Ethicist hit the nail on the head with the title “Internal Investigation: Interview, Don’t Interrogate.”
As said in the preceding paragraph, loss of employment may be the only real fear hanging over an employee or other witness in an internal investigation. Should the allegations being probed constitute a criminal offense, it may still fail as a motivating factor when an individual perceives – rightly or wrongly – that he or she may go to jail for his or her involvement in a given impropriety. Cooperate and save one’s job while handing a prosecutor the evidence for one’s own conviction at the same time? No thanks.
Further, the loss of a job may not be as devastating in today’s highly-mobile professional world as it once was. Or the employee or witness may not care to cooperate and provide information for who knows what reason. As a result, getting that cooperation is highly dependent upon investigators conducting a non-confrontational and conversational interview with an individual, as opposed to interrogating him or her.
Generally, people want to talk. They usually want to get their side of the facts out and understood by others, even investigators. They want someone to understand that if they helped to make or conceal an illegal payoff, it was only because of pressure to make in-time deliveries and to hit sales targets. Or because they felt that it was okay because everyone else was doing the same thing. Employees and other witnesses won’t say these things in what they perceive as a paper-tiger, company-authorized interrogation, but they often will say it in a conversation with investigators whom they rightly perceive as trying to flesh out not only the facts, but also the motivations for – and contexts of – their actions.
This tremendous difference, then, in approaching and obtaining cooperation from human witnesses is an important one that is probably largely unrealized by C-suiters commissioning probes of their organizations. Companies paying for internal investigations ought to be cognizant of the fact that outside counsel often has to take a different and more difficult tack than law enforcement in getting information and evidence from the people involved.