Overarching principles for investigators. The company’s board of directors carries an expectation to carry out a prompt, effective, and thorough investigation and be kept informed of consequences that may flow from the matter under investigation. This cannot be possible without proper grasping of the facts.
Overarching Principles For Investigators
False confessions and the unreliability of tainted information resulting from abusive practices have led to flawed decision making, wrongful convictions, and gross miscarriages of justice all over the world. Questioning, particularly of suspects, is inherently associated with risks of intimidation, coercion, and mistreatment due to the widespread misconception that “torture works.”
Such practices during interviews are both ineffective and counterproductive, with potentially devastating consequences for victims, perpetrators, institutions, and society as a whole; when they amount to torture, cruel, inhuman, or degrading treatment or punishment (or other forms of ill-treatment), they are expressly prohibited by international law.
Each investigator should notice each of these basic principles:
Maintaining confidentiality is crucial to the integrity of an investigation, and, therefore, every aspect of the investigation must be kept confidential. There might be severe repercussions as a result of a failure to maintain confidentiality. These consequences include:
- Damage to someone’s reputation if others get to know that the allegations were made;
- The success of the investigation can be undermined if others know of the investigation;
- The subject person of the investigation might strive to cover up any malpractice if they know they are being investigated;
- The company may encounter liability or negative publicity;
- The company’s capacity to save itself from any legal action linked with the matter could be jeopardized;
- The disclosure of the information could result in retaliatory action.
The need for confidentiality is initiated after the report is received. The fact that an investigation is underway means its subject matter, the processes followed, the materials gathered, and the results of the investigation must always be dealt with confidentiality. This includes exercising caution about using the details of the investigation later if the details could identify the person or the business department involved.
Professional skepticism is one of the main qualities of any investigator. There should be no presumption of honesty, truth, or guilt until the facts are gathered and the inquiries are complete. They must have the required skills to develop sufficient theories against which to match the factual evidence as it evolves. Lastly, they should possess the composure to find the smallest detail that people with less experience may overlook, but that can provide an important cue or deviation.
The essence of professionalism is that the investigators investigate with integrity, fairness, and diligence. Professionalism dictates how the investigation is conducted. Often the integrity of an investigation is decided by the reputation of the investigators. The way interviews are carried out, for example, sets the perception that the company takes the investigation seriously. Acting with professionalism means treating everyone involved with respect. It also means that assistance is sought when needed. It is not a failure of professionalism to confess the need for guidance or other assistance to complete the investigation.
Both investigators and decision-makers should safeguard the company and those who work for it by being objective and independent. Investigators must be free from actual or apparent bias or conflict of interest. Consideration must be given to whether an investigator’s judgment may be affected or criticized by previous biases or political considerations, whether actual or not.
Where there are any real or perceived threats to independence are identified, appropriate safeguards must be put in place to eliminate those threats. For example, an in-house investigator should not investigate their superiors’ actions. Also, in-house investigators who witnessed the underlying conduct should not take part in the investigation. Independence means that everyone gets a fair chance and that all investigation subjects are each investigated in the same way, with the same professional, impartial, objective treatment.
The quality of investigation also depends on the competence of the investigators. The ability to investigate and interview effectively is an acquired skill. Investigators must have the experience and the expertise to carry out a credible investigation. Investigators must understand how to interview witnesses, manage documents and other records, and keep proper documentation following the chain of evidence.
Investigators should also fully know about company policies, procedures, and company history and must be aware of the management controls and strategies employed by the relevant business unit. Investigators must be able to take part in the discussion of risks to the business, highlighting the potential likelihood or severity of risk areas. The investigative team must also be mindful of the various legal and business implications of the investigation and the techniques used to gather evidence relevant to the allegations.
Structuring an interview effectively to obtain information through careful questioning and/or through exploiting the weaknesses in a witness’ story needs substantial preparation and analysis of all available evidence. The company must consider the circumstances of the interview and the backgrounds of the witnesses in selecting the interviewer.
Objectivity And Impartiality
During our lives, we develop our own set of values. These values influence how we live and the decisions we make. These values are subjective and are shaped in part by gender, education, race, intellectual capacity, and personal experience. However, these have nothing to do with the reported conduct in an investigation, which must be viewed objectively. All information must be examined and assessed using the same standards, and the findings in an investigation should be based on the facts, not an opinion filtered through the investigator’s value system. A good investigator always understands and factors in his or her natural biases.
Those who report possible or actual misconduct and those who cooperate in an investigation must be protected from retaliation. An employee will only give information if they believe that they will not be penalized for doing so. Organizations need to be alert to signs of retaliation as it can happen at any time, not only after an incident is reported or an investigation is started.
Each investigation is unique in some way. There are varying levels of complexity and time requirements. But each investigation needs to be carried out promptly. Timeliness is certainly part of professionalism, but it is also important for other reasons, such as ensuring innocent people should be cleared as soon as possible, because corrective action is normally more effective when taken sooner, and continuing misconduct should be stopped as rapidly as possible.
Investigating an allegation is an equal part of art and science. The techniques needed to investigate allegations of misconduct competently vary. However, a good investigation begins by following each of these practices:
- It must be fair and objective. Everyone involved in an investigation deserves to be honored. Under typical circumstances, the subject will receive reasonable notice of the report and be offered a real opportunity to respond.
- Words have special meanings. The person who brings a matter to our attention is a “reporter.” The report is not a complaint or claim. If the report is made regarding someone, that person is the subject of the investigation, not a target. The use of proper terminology strengthens the role of a business-oriented truth gatherer.
- A common investigator error is to prejudge the outcome of an investigation before all the witnesses have been interviewed and all the relevant documents have been reviewed. Resist the temptation to jump to conclusions as it can clout judgment. Until the report has been proven or a suspicion validated, there is no confirmation of misconduct. Nor should a report be dismissed simply based on the opinion of the source. It is important to keep an open mind to other possible explanations or scenarios.
- Be sensitive to any actual or perceived conflicts of interest that might arise. Investigations must avoid even the appearance of bias or partiality to a particular person or result.
- Keep the interviews serious and business-like. Remaining calm and in control throughout the interview is important. An interview is no place for joking, sarcasm, or threats.
- A good investigator never stoops to undignified tactics. Sometimes, the interviewer may need to be aggressive or tenacious, but never insulting or demeaning. There are times in an interview when the interviewer may not be treated respectfully. Despite the hurt and angry feelings such actions may evoke, the interviewer should not lower themselves to that level. If the interviewer gets angry, insulted, or offended during an interview, they give up control of the interview.
- Never mislead a witness. This could result in employees distrusting the entire process.
- Do not tell the witness what other witnesses had to say. Interviewers do not want the witness to conform their statements to the statements of others.
- Try not to impress the witness. The purpose of the interview is to get information, not give it out. In the same way, the interviewer should not reveal what they know about the relevant facts. If they do, they will also tell them what they do not know.
- Do not expect admission in an interview. The investigation should focus on eliciting as much relevant information as possible.
- Opinions or conclusions should not be discussed. The witness should be kept guessing as to how much the interviewer knows.
- Interview only one person at a time, not groups of people simultaneously. Group dynamics and peer pressure may distort or suppress responses.
- The interview approach should facilitate a candid discussion. The comfort of the witness should be considered, and the interview should be conducted at a place where the witness is comfortable and most likely to be forthcoming with information.
- In the case of telephone interviews, if the person being interviewed goes on hold, the hold time should be noted. It may be related to a call the witness makes while on hold.
- Protect the confidentiality of the investigation. Not every report is substantiated. Some investigations are closed without the need to discipline anyone involved. However, allegations of misconduct, even if later found to be groundless, can still damage someone’s reputation. Do not disclose the allegations or the existence of an investigation to anyone who does not need to know. Curiosity by others, including executive management, is not a basis for sharing information about an investigation. The inadvertent disclosure of information could lead to the subject employee bringing claims for defamation or infliction of emotional distress.
- When considering who should be interviewed, remember that an interview will result in the witness learning that there is an issue or concern relating to the facts discussed in the interview.
- Documents should be safeguarded against inadvertent disclosure and should be kept in a safe place.
- The inquiries should be made promptly, but all appropriate diligence should be exercised. Make sure the inquiries are made timely to ensure that appropriate documents and emails are preserved and that all steps are taken to stop continuing or imminent noncompliance.
- Every interview should identify, to the extent possible, the personal biases of the witness and the basis of their knowledge of the operative facts. Each witness has some bias, and that bias is not fatal to their recollection of facts. However, the interview must identify whether some personal feelings may color the witness’ perceptions.
- Those participating in investigations should take all steps essential to protect whistleblowers and those who cooperate in the investigation. Disclosing to the witness the source of the report should be avoided. Any report of retaliation that emerges during the investigation should be treated as an additional report of possible misconduct and reported to the Investigations Counsel immediately.
- When making inquiries, consider the broader implications of evidence discovered for the affected business unit or the company as a whole. In addition to making recommendations to management about what action should be taken concerning the person involved, appropriate recommendations for changes to policies, procedures, training, monitoring, audits, or other steps to prevent a recurrence should also be made. The investigation should be used as an opportunity to improve the business.
Business Goals Of The Investigation
The effectiveness of every fraud investigator in pursuing fraud investigations is judged by how closely and consistently he or she reaches or exceeds her investigative goals. Properly conducted investigations improve the business, either by identifying areas of unacceptable business risk or flawed business operations which expose the company.
The goals of the investigation should be clear from the outset and could include: minimizing business risk, identifying weaknesses in business operations, removing certain individuals from the company, recovering company assets that were lost because of the misconduct, obtaining the criminal prosecution of those involved, protecting the company’s public image and reputation, and preparing for anticipated civil or criminal litigation involving the company.
There is a need to shift the culture of questioning away from accusatory, coercive, manipulative, and confessional practices and toward rapport-based interviewing. This includes implementing legal and procedural safeguards throughout the interview process, which reduces the risk of mistreatment, yields more reliable information, and contributes to the investigation’s or intelligence operation’s legal outcome.