Taking and documenting a statement

By Attorney Steven N. Malitz and David ZulawskiChairman CFI/Senior Partner/Speaker of Wicklander-Zulawski & Associates, Inc.

Steven Malitz is a partner in Arnstein & Lehr’s Litigation Group. Mr. Malitz has extensive expertise representing retailers in security-related matters and employment, defamation and premise liability litigation.

Wicklander-Zulawski & Associates, Inc. (WZ) continues to be recognized as the premier consulting and training company on interview and interrogation techniques.

A. Documenting the Admission

One of the most valuable parts of any investigation is a well-conceived written statement that details the subject’s confession, knowledge of an incident, or alibi. This formalized document locks the individual into his admission or alibi so that it becomes more difficult for him to change it at a later date.

A suspect’s statement may take one of two forms. The first type details a statement made by a suspect who denies any involvement but communicates his alibi or the circumstances surrounding the incident. Once this information has been documented, it is difficult for the guilty suspect to change his story. Should the guilty person later attempt to change his alibi or the circumstances of the incident, his original statement can be used to discredit his newly found accounts and/or information. By locking the suspect into the details of his alibi or the circumstances surrounding the event, the investigation can clearly focus on proving or disproving the information contained in the statement. At trial, a statement that can be proved false has almost as much effect on the judge and jury as a confession of guilt.

1) Types of Statements

There are a variety of different formats in which an oral statement can be properly documented. The type of statement selected for use by the interrogator may be dependent upon the type of case, its seriousness, the resources at hand, the time factor, and of course, the company’s preference.

Some of the statement types commonly used would include but are not limited to:

a) Narrative

One of the most common forms of the written statement is the narra­tive. A narrative statement allows the subject to tell their story, recounting the details of the event or series of events involved in the incident being described. The narrative statement is usually a handwritten account given by the suspect, using the first person to describe his or her activities in the incident.

b) Question and Answer

A second type of statement that can be obtained from an individual is the Question and Answer statement. In this type of statement, the interviewer hand writes or types a specific series of questions pertaining to the matter at hand, to which the suspect or witness replies by answering those questions through a written response.

Sometimes, a suspect’s written narrative statement may lack certain details or elements necessary to prove the crime. In other circumstances, the purpose may be to further clarify a point or statement. In these instances, the Question and Answer format can be used to supplement the written narrative statement provided by the suspect.

c) Formal Statements

In cases where the seriousness of the incident or potential cost to a company is significant, a formal statement should be obtained. The formal statement utilizes a court reporter or stenographer to provide a detailed record of the questions and the witness’s or suspect’s explicit responses to the facts and circumstances of the incident. When involving complex issues, it may be preferable to avoid the handwritten statement in favor of a formal, typed document or recorded statement.  In the context of an LP investigation, a formal statement may not be practical.

d) Audio or Video Recordings

The expansion of technology has provided us with an array of new and improved opportunities to clearly record statements through a variety of audio or video resources. Many investigators successfully use these techniques to record a witness’s or suspect’s statement, which can later be transcribed and included in the file or case management system. Generally, the subject’s permission to record the statement should be obtained. The interrogator should also note the identity of all persons present during the statement; along with the date and time the statement was obtained.  In the context of an LP investigation, a formal statement may not be practical.

2) Interrogator Control

From a legal standpoint and to avoid a damaging cross examination, we assume that the interrogator has the proper training, CFI qualifications and experience.  Regardless of the particular type of statement that is used, it is essential that the interviewer/interrogator continues to maintain control to assure a viable and usable statement is received from the suspect or witness.  Managing this process requires sustained focus and attention to ensure successful closure. To allow a suspect or witness to proceed without direction while making a statement is almost to assure that it will be ineffectual and unusable.

Although the interviewer/interrogator does not dictate the statement, they certainly control the formatting of the document and can provide additional guidance when appropriate. The interviewer/interrogator should not leave the suspect alone to complete the statement. Leaving a suspect alone will likely result in either no statement being written or the failure to ensure that important and pertinent information is included.

a) Setting and Timing of Taking the Statement

The suspect or witness’s statement should be taken immediately following the conclusion of the interview or interrogation. The statement should be taken in an office on the retailer’s premises.  The statement should not be taken off-site or in a cellar, basement or other highly secluded area.  The door should never be locked and the suspect should be told of his or her freedom to leave.  The interrogator should not scream or yell at the suspect.  Highly effective interrogators use a soft touch. Ideally, the interviewer/inter­rogator has established a rapport and cooperation with the individual which he or she should capitalize on during the statement taking process.  In a simple retail theft case, the suspect should not be questioned for too long.  The suspect should be allowed to use the washroom, and eat and drink in the event that the questioning session is extended in a more serious case.  The interrogator should be seated along with the suspect and should not stand above the suspect or block the door.  This advice may be obvious to some but cases abound where LP associates and their retailer employers have been sued for false imprisonment, intentional infliction of emotional distress or other such torts.  Given the international publicity and indictment of John Burge, coerced statements won’t carry the day in court and will undoubtedly inflame judges and juries.

3) The Statement Format

The interviewer/interrogator should become comfortable with a consistent state­ment format that is used for each and every statement that he or she obtains. Using the same format allows the interrogator to concentrate on the details of the incident rather than focusing our concern on what should come next in the body of the statement. In most statements, regardless of whether or not the type of statement is narrative, question and answer, formal, or recorded by audio or video means, a similar format can typically be used.

The statement can be broken down into five distinct parts:

Part One: Introduction

Part Two: Total admission

Part Three: Substantiation of the total admission

Part Four: Voluntariness of the admission

Part Five: Signature and correcting errors

Let’s take a closer look at each of these distinct components of the statement to further enhance the quality of the final product:

Part One: The Introduction

In the introduction of the statement, the interviewer/interrogator asks the suspect to include personal biographical information pertaining to the suspect. Asking the suspect to include personal biographical information is non-threatening to the suspect, and provides several benefits to the interviewer/interrogator. First, it clearly identifies the suspect who is giving the statement. The introduction includes the suspect’s name, address, job title, and the location of the company where he is employed. Many interrogators also include information about the suspect’s age, educational level, social security number, or other pertinent biographi­cal information. The amount of biographical information included in the introduction is dictated by the interrogator, or by department or company policy.

Part Two: The Admission

The second part of the statement should be a blanket admission by the suspect clearly indicating that he or she committed the crime or violation. The initial admission of involve­ment in the crime or act contains the element of proof, but lacks the details of the admission. This is done for several reasons. First, having the suspect make a complete and unmitigated admission to the crime or incident sets the stage for later substantiation. Second, it gives the jury, hearing officer or other reviewing parties an opportunity to hear the blanket admission first. The blanket admission will grab and hold their attention. Ideally, this blanket admission should also contain the elements of the crime or incident to which the suspect is confessing. This is done by the suspect’s using words that include intent-for example, “I stole,” “I embezzled,” which show the intent of the suspect to commit the crime or violation.

Part Three: Substantiation

In this section, the suspect is asked to substantiate his or her admission with the details of the crime or incident. The “who, what, why, where and how” of the crime.  In the private sector, these details often relate to the theft of company assets. Here for example, the interrogator has the suspect detail the first and last time that they stole money or merchandise, the greatest amount of money or merchandise stolen at one time, the method used to commit the theft, what they used the money or product for (including any personal details of its use), and the location of any remaining merchandise or evidence.

The suspect’s identification of evidence, pictures, or documents may also be incorporated in the substantiation component of the statement. Sketches may be used to illustrate a particular element of the admission. All of these pieces of evidence should be referred to in the statement, and further reflect that the suspect dated and initialed the items in order to identify them.

Part Four: Voluntariness

Once the details of the incident have been included, the interrogator should begin to close the statement. This is accomplished by first asking the suspect if everything that was written in the statement is true. The suspect will generally acknowledge that they have told the truth, and they should then be asked if they would include that acknowledgement in the statement. The suspect should also be asked if they are making the statement of their own free will without any threats or promises. The suspect’s affirmative response to this question can be included in the statement by simply saying, “Why don’t you put that in, too.” Once this admission has been included in the statement, the interrogator, who has been reading along as the suspect writes, makes a decision whether or not it is necessary to use an additional question and answer supplemental statement to clarify any points of the statement.

This section may also contain the suspect’s apology for committing the crime or other violations. The suspect is encouraged to explain why the incidents happened and what was going on in their personal life that caused them to do these things. Including this type of information adds credibility to the statement by providing personal information; and if it is deemed necessary these statements may provide additional support for the truthfulness of the admissions.

Part Five: Signature and Error Correction

Once the suspect has completed the narrative portion of the statement, substantiated the admission and acknowledged its voluntariness, the statement should then be signed by the suspect, interrogator, and witness. The interrogator simply points to the place on the page immediately following the last paragraph and makes the statement, “Why don’t you write your name here.” Generally, the suspect will then willingly sign his or her name at the appropriate spot on the page. If the suspect hesitates to sign their name, the interrogator may need to offer additional support to reduce this resistance.

Once the suspect has signed the document, the interrogator collects the last page and adds it to the other pages of the statement. At this point, page by page, the suspect is asked to initial any scratch‑outs or correc­tions that were made, and sign each page of the statement. They are then advised that this is done to assure that they are in fact the individual that made the corrections, and no one else altered the statement in any way. Initialing any scratch-outs or mistakes also validates a thorough review of the document by the suspect for accuracy. At the same time that the corrections are initialed, each page of the statement should be numbered (This is done by noting at the top of each page: page one of three, page two of three, page three of three, and so on…).

4) Protection of the Statement

As each page is completed by the suspect, the interviewer/interrogator should remove that page from the desk and conceal it in his case file to protect it from being destroyed. Statements left within reach of the suspect can quickly become damaged or destroyed.

5) Witnessing the Written Statement

After the statement has been completed and signed by the suspect, the document should then be wit­nessed by the interrogator and a witness. The interrogator will sign his name to each page of the statement along with the date and time. The witness shall also place his or her name on the document immediately below the interrogator’s signature.

Ideally, a witness or “prover” should be present during the entire session.  The prover can corroborate out of court and in court the setting, questioning, answering, demeanor of the suspect, admissions, confessions and all other aspects of the interrogation.  And, the witness or prover need not be another LP associate; better that the prover is from another department in the store.  In the event that the witness was not present when the written statement was obtained, the interviewer should bring the witness into the room to first witness the oral confession, and then witness the written statement. The interrogator should have the suspect acknowledge that they did in fact write the statement, that the signature is theirs, and that the information contained within the statement is the truth. The interro­gator also should elicit from the suspect several verbal admissions that confirm the substantiation contained in the statement. By verbally witnessing the suspect’s oral statement and having the suspect acknow­ledge the truthfulness of his handwritten statement, the interrogator has now provided another witness able to testify to the suspect’s admission.

Remember:

1. Take a thorough written statement at the conclusion of each interview which warrants one.

2. The dishonest associate’s statement needs to include intent, elements of the crime or policy violation, be thoroughly substantiated and address the voluntariness of the statement, among other things.

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