Investigative interviewing: five strategies to ask questions that count

Jill McMahon - Wednesday, April 17, 2013

Construction worker on the phone 

A sub-contractor on a construction site was instructed by a lead contractor to start drilling through a wall - despite warning signs on site that indicated the risk. He hit an electrical cable and received a massive shock. Amazingly, he lived.

As the dust settled, managers of several businesses involved in the project, realising the potential liability from this breach of health and safety, initiated a full investigation.

This incident is typical of the kind of health and safety breach that benefits from independent investigation – there is too much at stake for any of the parties involved to investigate this incident themselves.

The key is to obtain a complete account of what actually happened.

Here are 5 key strategies, or steps, in the process of asking questions of the people who were involved in or witnessed the incident that a professional investigator would use to get as close as possible to the truth of exactly what happened.

Step 1 - Obtain a free recall
A free recall is an account of events offered by a person free from guidance or interruption by the investigator. The investigator should ask a very broad open question seeking as much information as possible from the interviewee about the incident. It’s always advisable to seek a free recall before asking specific questions. For example: “I am investigating the circumstances surrounding John James’s accident. I’d like you to tell me everything you can about how it happened.”

Step 2 - Establish a timeline
Create a timeline based on the information obtained in the free recall. A timeline is a chronology of events. This will form a road map for questions later on in the interview. You may need to obtain evidence that requires the order of events to be very clear. For example: “When did Mr Smith ask you to start work on the drilling? Was that before or after you received the briefing from the electrical contractor?”

Step 3 - Recreate the context
Recreating the context of events surrounding the incident can be an effective way of obtaining a free recall. You can do this through verbal instructions to the interviewee. For example:  “Please close your eyes and think back to the time of the incident. Imagine where you were and then tell me everything you can about what happened” – and by asking them to draw a sketch. Encourage the interviewee to describe verbally what they are drawing at the time, and also ask them to label the diagram and sign it. Use this to ask clarification questions. For example: “You have drawn the stairs over here, was it directly opposite that window?”

Step 4 - Obtain a second recall
Interviewees rarely disclose all information in a first recall. Asking a person to recall the events for a second time normally produces more detailed information. But it’s a good idea for investigators to narrow the questioning to more specific issues; otherwise the interviewee may lose interest in the interview. For example: “In the first interview, you said Mr Smith was in a hurry to get the job done, can you explain why you had that impression?”

Step 5 - Ask probing questions
Probing questions are those that seek specific answers. They should be open to allow an unlimited range of responses wherever possible, but the occasional use of a closed specific question to clarify a point is also advisable. (Closed questions are those that illicit only a single “yes” or “no” response - or a very limited range of responses.) An example of a probing question may include: “What training have you been provided on the use of this machine?”

For further information on investigative interviewing skills you can purchase a copy of our book Investigative Interviewing here.

The support person and investigative interviewing – key considerations

- Wednesday, April 10, 2013


I often get asked about the role of a support person in an investigative interview, so here are my responses to three of the most common questions.

Do we have to have a support person present?
There is no legal requirement for a support person to be present at a workplace investigative interview. The law states, however, that there should be no “unreasonable refusal” when discussing a serious adverse matter such as the dismissal of an employee.

In such situations, then, it is strongly advisable to have someone present to provide support to the interviewee, because courts have ruled against employers who prevented a support person attending an interview in some cases.

For interviewees who are apprehensive about the process, perhaps speak English as a second language or may in some way be considered vulnerable having the emotional and moral support of someone they respect can help them understand the situation. .

My advice is simple: it is best practice to invite, if not encourage, an interviewee to have a support person - especially in any meeting where there is a chance of an adverse outcome. In the case of an interviewee who may be considered vulnerable, I would insist on a support person being present - unless there were exceptional circumstances.

Watch this short video showing how to brief a support person.

Ultimately, the presence of a support person is about two things: to create a more relaxed and less intimidating situation for the interviewee, so that they feel more confident and more inclined to impart information, and to ensure that the interview takes place in a fair and non-threatening environment.
That said, interviewers should ensure the integrity of their whole investigation, and this leads to another commonly asked question:

Can investigators prevent a particular person attending an interview as a support person?

A support person who is any way involved with the matter at hand may risk compromising an investigation. For example, if there is a perceived risk that someone may collaborate with witnesses or others who are yet to be interviewed, that they may manipulate the outcome of an investigation – even unwittingly - they shouldn’t be allowed to attend.

A support person should not be a minor, and investigators should also take care in circumstances where the support person may hear allegations or information raised in an interview that could adversely impact their relationship with the interviewee. For example, an employee may bring along their spouse who is then confronted with allegations of sexual misconduct which they hadn’t known about earlier.)

It is inappropriate for someone who has been involved or may be involved in the investigation to act as a support person.

Another typical question is about managing the interview with a support person present;

How do you handle things when the support person tries to interfere?
If a support person is disruptive in an interview, investigators should state - and re-state - the role of a support person. Explain that this is the interviewee’s opportunity to tell their version of events.

If they continue to disrupt, you may need to warn them politely that if they persist, they will be excluded and the interview closed. Avoid getting into an argument: it’s better to put your concerns to the respondent directly and empower them to deal with their support person.

A lawyer can be a support person, although in the case of a matter affecting a small business with fewer than 15 employees the lawyer cannot act in a professional capacity.  If a lawyer is acting as a support person, they can consult with their client but they must not answer questions on behalf of the interviewee.

For more information on investigative interviewing, you can purchase a copy of our book Investigative Interviewing: A Guide for Workplace Investigators by Harriet Stacey and Alison Page here . If you’re conducting an investigation and need help don’t hesitate to call us on 1300 580 685 to find out more about our supported investigations service.


Lessons from FWC on inferring facts without evidence

Jill McMahon - Wednesday, April 03, 2013


By WISE Legal Counsel Alison Page

Investigators can learn a valuable lesson from an unfair dismissal decision by the full bench of the Fair Work Commission, handed down in March 2013.

Although the case was concerned with the application of regulations in the child care industry, it is a timely reminder not to make assumptions, or infer facts. There must be evidence for all findings. The case is also instructive for child protection investigations, particularly those involving the question of "ill-treatment".

In this case, the employee was a director of a child care centre. A parent had recently left a very distressed three-and-a-half-year old in her care. The director was the sole carer on duty when the phone rang in another room about five metres away. She momentarily left the distressed child to answer the phone in the neighbouring room, leaving the door open. She felt compelled to take the call because she thought it may have been an employee phoning in ill.

The child care centre’s supervision policy stated that children should be actively monitored at all times: “Carers should avoid carrying out activities that will draw their attention away from supervision such as reading or speaking on the phone.” If a carer had to stop actively supervising a child, they had to ensure another carer replaced them.

On the basis of this incident, plus another unrelated incident, the centre’s management decided the director has breached the centre's supervision policy and sacked her.

The director brought an unfair dismissal action against the centre, which was initially dismissed. The Commissioner found that the "crucial matter" was not whether the toddler was out of the director's sight for a few seconds, but rather that she had "switched her mind to another matter" and left the child unsupervised. In addition "the child was in a state of some distress makes the actions of the [director] of greater concern".  

However, on appeal, the Full Bench of the FWC ruled in favour of the director. They held that the incident was not a valid reason for dismissal. The bench criticised the Commissioner for inappropriately inferring from the evidence provided that the director had "switched her mind to another matter" when she went to answer the phone, and was therefore "no longer giving her attention to the supervision of the child".

The bench did not believe those inferences were available from the evidence.

“While there was evidence to the effect that Ms Read knew the telephone was ringing, thought it may have been a staff member ringing in ill and left the infants’ room to answer the telephone, we do not think it follows that she had switched her mind to another matter and was no longer giving her attention to the supervision of the child.

“This is particularly so when the evidence was that the child was only five metres away, was out of her sight for no more than a couple of seconds and she could hear the child crying. Further, the Centre Policy on Supervision deals specifically with telephone calls and provides that carers ‘should’ avoid speaking on the telephone, not ‘must’ avoid speaking on the telephone…

Top Forensic Psychologist Says Investigators Must Accept They Can Do Better

Jill McMahon - Tuesday, March 26, 2013


A woman suffered a vicious rape in London. There was little information to work with after the initial investigation. The victim had been drinking heavily before the attack and she believed there was little chance of the rapist being caught, let alone convicted. She seemed unable and unwilling to provide important details of what had happened.

An investigative team was assembled, including one of the UK’s top forensic psychologists, Professor Ray Bull. “She was understandably reticent, she didn’t want to say anything that was inconsistent and that might weaken her case,” says Bull. “But a lot had happened to her and we needed to work that out.”

Bull selected an interviewer, a young woman, whom he thought would be most effective. He listened in to the interviews and, drawing on more than 30 years of research in psychology, provided continual advice. He helped her obtain key details, some of which enabled police to connect the attack to another incident, and eventually convict a serial rapist.

Investigative interviewing is at the very core of the system of justice, says Bull, and investigators must strive continually to improve what they do. “It’s essential. The consequences of not being good are horrendous. This is real life - and if you get it wrong you can do a lot of damage to a lot of people.”

Bull conducts research on investigative interviewing of suspects, witnesses and victims, as well as witness memory and voice recognition. He shares his research and that of other academics internationally, consulting to organisations as diverse as the UK’s Home Office, courts, governments, police forces and even large private companies.

While investigators need to have a high level of self-belief and confidence, he says, they need to be open to accepting that they can always do better. At an institutional level, organisations need outside help and to learn from the variety of research that is now available. “I spend a lot of my time going around the world training the trainers,” says Bull, who was recently in Jamaica working with an internal police organisation.

People are not naturally good interviewers. “What you want in an investigation is for a person to give you lots and lots of information,” Bull says. “Socially, we learn the opposite - in normal conversation we ask a lot of closed and leading questions, and that can be very difficult to give up.”

Bull has been closely involved with the substantial changes that have taken place in the UK with investigative interviewing. In 1986, it became a legal requirement for police to record interviews, the first country to do so. It was only when these recordings were analysed that police officers themselves realised they were not interviewing well.

“People guilty of serious wrong-doing were running rings around the investigators,” says Bull.
That led to investment in research and the training of detectives in the mid-1990s. Today, the UK is widely considered a model of cooperation between academics, investigative authorities and the government.
New research is continually challenging commonly-held beliefs, says Bull.

“It’s a common belief, for example, that people who have done something wrong are not going to tell you about their wrongdoing. Well, in fact, there’s an increasing amount of recent and meaningful research that has come to the surprising conclusion that only about 25% of people guilty of wrongdoing will absolutely deny it.

“In fact, about 50% of people who are guilty of wrong-doing are pretty open-minded about how they are going to behave, and wait to see how they are treated by investigators,” says Bull.
Interviewers need not to have a domineering approach if they are to persuade potentially hostile suspects or witnesses to give them information. There need to be pauses and silences in the interview, and establishing and maintaining rapport with the interviewee is one of the “most essential” skills to learn, says Bull.

The key to a good investigation, says Bull, is the content of what people say. “You need to interview in a way that gets people talking, and then you can analyse and compare what they say with other information and that substantially increases the percentage above chance of getting to the truth.”

Bull started working with a major police force in the UK in 1970, helping officers with recall and memory. He’s conducted research on interviewing vulnerable people and authored the first official guidance in the UK on how to interview children. He is regularly asked to provide expert reports on the quality of interviews and testifies in court on average about eight times a year.

During an academic career now spanning more than 40 years, Bull has written or co-authored more than 200 academic articles and books.

He received a Commendation from the London Metropolitan Police for “innovation and professionalism” for his assistance with the London rape case.

He has since received awards and recognition for his work from the British Psychological Society, European Association of Psychology and Law and a special prize for his “extensive contributions to investigative interviewing” from the Scientific Committee of the Fourth International Conference on Investigative Interviewing.

Professor Ray Bull will be visiting Australia in April & May 2013 to conduct a series of master classes on investigative interviewing. Click here for more information.

Why mediation should be the first step - not the last

Jill McMahon - Wednesday, March 20, 2013


by WISE mediator Anna Faoagali

Mediation - A Case Study
Steve worked in a young, fast-growing technology business as a team leader. When the post of manager in his department became vacant, the CEO asked him to fill in while they head-hunted for the right person. Steve had worked at the company almost since it started, got on with everyone and was technically competent – but he didn’t have much management experience.

It took a few months before Jim was appointed. As the acting head of department Steve had to hand over and introduce Jim to the new business – and the two of them began to butt heads almost immediately.

Jim was older and came from a larger, more hierarchical organization. He wanted to run things very differently. Steve was hands-on and resented the fact that Jim wasn’t prepared to roll up his sleeves and do the work. Jim seemed highly qualified – just the sort of person to add depth of experience to a fast-growing company and he had the support of the CEO – but he struggled to adapt to the way the rest of the team worked.

Initially, Jim and Steve had heated discussions, which developed into full-on arguments. To their credit, they often took their dispute out of the open plan office and into a meeting room. They also tried to sort things out over drinks after work, but the arguments got worse and Jim started a campaign to undermine Steve’s position.

It was apparent to everyone that there was a major conflict brewing. People started to take sides. Jim had the ear of the CEO who knew there was discontent but thought it would pass. Steve complained about Jim’s behaviour to the HR manager, who gave him some advice about how to deal with the situation, but took no action.

Steve started looking for work elsewhere and complained bitterly about the “new regime.” He soon resigned and went to work for a competitor. By that stage, Jim’s department was unimpressed with their new manager and without his team’s support the whole department’s performance lagged. He was eventually persuaded to resign too.

Note: Names and details have been changed in this case study for reasons of confidentiality 


Why mediation should be the first step - not the last

WISE's Anna Faoagali issues a plea for more proactive use of mediation services in the workplace.

Often, when independent mediators are brought into a workplace, relationships may have become so fractured that the parties in dispute may have grown to include whole teams. Issues that could have been contained have burgeoned into much bigger problems.

When an employee makes a complaint against a co-worker, for example, and there is insufficient grounds to warrant a dismissal, it’s common that both complainant and respondent continue working together - despite the impact the complaint may have had on their working relationship and within the broader workplace.  

It usually takes time for a relationship to deteriorate to the point where an employee officially complains, and a number of events would typically have occurred before they disclose it to their manager or HR. Add to that the time it takes to make a decision about how to progress the complaint and whether it should be handled internally or externally, and investigated formally or informally.

Disharmony Reigns
By this stage, the impact of the complaint on the workplace is already likely to have started to take its toll. The team isn’t performing as it was, co-workers are taking more sick leave, other complaints are raised and often general disharmony reigns.

Furthermore, whilst the matter is in process, the relationship between the complainant and the respondent - left without intervention - will predictably deteriorate. The negative impact on the team starts to become embedded, affecting new recruits, too, who are warned by staff about the conflict.

Past team members may reinforce positions or views about a person and their intentions; employees can be unsure how to interact with each other and feel pressured to take sides; and managers may feel unable to do their job, stymied by the air of uncertainty. Each group has their own unique set of stressors, potentially manifesting as anxiety, sickness and low productivity.

Culture of Conflict
Employees start to spend their work time documenting conversations and actions, recruiting other staff to support their views, developing claims against each other and the employer and/or looking for alternative employment. All of this contributes to a culture of distrust and conflict.

Mediation can play a powerful role in managing the workplace, but my experience suggests many managers see bringing in professional help as the last resort, rather than the first step in the process of resolving potentially damaging conflicts.

I’m not suggesting all complaints procedures start with mediation. There are situations when that would be inappropriate. But even when employees raise serious allegations, independent mediators can help manage the ensuing process.

Fraught with Risks
In the past, employers tended to determine blame and assist the “offending party” move to another job. Now, however, employers are expected to provide options so that employees in conflict don’t have to leave the workplace. This approach is fraught with risks if the behavior is not addressed. Functioning areas of the workplace may become contaminated giving rise to a whole new set of complaints, costs and claims.

So what does all this mean? Managers need to deal with complaints and behaviour that may amount to unlawful conduct or misconduct when they become aware of them. Also, when complaints do not warrant formal intervention, employers need to put in place processes that support opportunities to improve working relationships. This is where employers can make the most difference.

Engage with Staff
Managing the complaint as well as workplace relationships may require two very
distinct, yet simultaneous processes. Employers understand and embrace processes to manage, but when it comes to relationships within the workplace, that’s when they are often most challenged to know how to make a difference.

It is not just about mitigating risk and exposure to costly claims. Implementing fair and supportive systems and processes will do this naturally, and it is where mediation is most powerful. It enables organisations to engage with their staff, challenge them to take responsibility and choose how they want to work together, resolve their differences and contribute to the enterprise – or not. That’s when mediation will have the most impact on individuals, the team and the whole organisation.

Workplace mediation can provide a safe process to start exploring what professional working relationships should look like, what support structures may be needed, how employees intend to evaluate their commitments, develop processes around handling future conflict and inspire a team to productively manage conflict. 

To audio record ... or not to audio record?

Jill McMahon - Tuesday, March 12, 2013

HARRIET STACEY on an age-old dilemma for investigators - even as technology makes it all so much easier.

Regardless of recent technological developments that enable reliable digital audio recording without great expense - and mass access to MP3 and MP4 files and transcription programs – workplace investigators still dwell on this question: to audio record or not.

Anyone who has an iPhone and music software on their computer can easily audio record an interview on their phone, upload it to their music player and be confident that the recording is accurate and audible.  

I’ve been playing recently with smartpen technology that allows you to record the audio on an unobtrusive pen whilst taking notes. The recording device can then play back the audio by simply touching the pen on the notes from that section of the interview.  

Testing competency
This approach is potentially invaluable when testing competency and concepts with children and vulnerable witnesses, enabling them to draw their understanding of ‘under’, ‘over’, ‘in’ and ‘out’ etc.

Whilst interviewers are still obliged to gain permission to record the interview and announce the parties present and the time and date of the recording at the start of each interview, the absence of the triple-deck tape machine goes a long way to reducing the anxiety that recording devices used to generate.  

In fact, our whole attitude towards recording life in general has become more relaxed with the mass adoption of video phones, social media and YouTube. Now, it seems almost any moment from your social life could end up online!

I’m not suggesting for a second that investigators even consider posting their interviews on social media, but the point is society as a whole is more accepting of all of our lives being that much more public than they used to be. And that means a lot more interviewees are probably more relaxed about the presence of recording devices.

Barriers Remain
Recording interviews with people accused of workplace misconduct – or respondents - is now generally accepted. But some organisations still resist this when it comes to interviews with witnesses or complainants.

Managers and their advisers become anxious about privacy laws, confidentiality and potential liability, all of which results in policy inertia about accepting new technologies and embracing best practice.

There is a mass of research on the unreliability of witness evidence in the criminal arena. Just as early research into police interviewing conducted by J. Baldwin in the 1990s showed big skills gaps, recent research into the accuracy of witness statements is likely to cause ripples throughout the world’s justice systems by illustrating the inaccuracies in witness statements when compared against transcripts.

Assess Reliability
Whilst some decision-makers harbour misconceptions that taking witness statements is quicker (and therefore less costly) than audio recording -- it certainly produces shorter paper documents -- the main reason for recording witness accounts in workplace complaints is to enable investigators and decision-makers to assess the reliability of the witness account, and identify issues that are lost or hidden in a polished witness statement.

In administrative decisions, viewing the transcript of an interview provides valuable information to decision-makers about the likely reliability of the evidence. Unlike criminal proceedings, administrative decision-makers are rarely able to cross-examine and question witnesses, so they have to base decisions on the evidence in front of them. That makes the transcript of interviews so much more valuable.

What do you think?

NOTE: In May Professor Ray Bull, a UK-based psychologist, will be conducting a number of Master Classes in Investigative Interviewing in Australia. Ray has been intimately involved in the development of Investigative Interviewing in the UK and in law enforcement organisation around the world. The British Government commissioned him to draft the first guidelines on interviewing children in the 1990s. Ray has since gone on to build a lifetime of research and practice on police interviewing and more latterly the application of interviewing in the administrative law field. His visit to Australia in April and May is being hosted by WISE Workplace.

Congratulations to our students

Jill McMahon - Thursday, December 27, 2012


Well done to the staff from Uniting Care Children, Young People and Families (UCCYPF) who did their assessments for the Certificate IV in Government Investigations just before Christmas.

These staff are the first cohort from UCCYPF who will be trained by WISE to conduct workplace investigations and build the organisations capacity to respond to complaints of misconduct and allegations of 'reportable conduct'.

UCCYPF staff attended training in April 2012. The program was specifically designed to meet the needs of the organisation and advance the skills of staff in conducting workplace investigations.  UCCYPF have more training planned for next year.

Based on the success of this program WISE will be offering two public courses during 2013 for people who investigate 'Reportable Conduct'.

AHRC survey finds sexual harassment a common workplace problem

Jill McMahon - Thursday, November 15, 2012


Even though the Sex Discrimination Act was introduced in 1984, AHRC's recent report on its survey on the prevalence of  sexual harassment in the workplace, shows that sexual harassment remains widespread and efforts to curb this behaviour have stalled.

AHRC's report Working without fear: Results of the sexual harassment national telephone survey 2012 shows that in the past five years:

  •     approximately 1 in 5 people 15 years and older were sexually harassed in the workplace;
  •     1 in 4 women (25%) have been sexually harassed in the workplace;
  •     1 in 6 men (16%) have been sexually harassed in the workplace;
  •     the most common targets are most likely to be women under 40;
  •     harassers are most likely to be co-workers;
  •     women are at least 5 times more likely than men to have been harassed by a boss or employer;
  •     more than half of all sexual harassment involved men harassing women;
  •     nearly a quarter of all harassment involved male harassment of men;

Encouragingly, 51 % of bystanders took some steps to prevent or reduce the harm of the sexual harassment they were aware of.

The full report can be read here

Wise Workplace has had a lot to say about sexual harassment in the past given that this behaviour is sadly a common feature in its investigations. As AHRC's report paints a disturbing picture of a continuing and endemic workplace problem, Wise Workplace will have more to say in the future.


Jo Kamira in The Canberra Times

Jill McMahon - Sunday, December 04, 2011


WISE's Jo Kamira features in not one but two recent articles in The Canberra Times.

In these articles Jo talks about her experience in investigations and upward bullying.

Please click on links below to read the full articles.

Probing misdeeds in the workplace - Opinion - Editorial - General - The Canberra Times

Rogue workers 'terrorising' employers - Local News - News - General - The Canberra Times

31 Days 31 Tips - Complete List

- Wednesday, September 14, 2011

During August we posted daily tips on investigations on our website, facebook and twitter. Here is the complete list of those tips.

31 Days 31 Tips

 Tip 1 – Silence is an interviewer’s best friend

Tip 2 – Don’t assume anything

Tip 3 – If in doubt ask

Tip 4 – Consider each case on its merits

Tip 5 – Be warm and neutral

Tip 6 – Respect cultural difference

Tip 7 – Start your questions with “tell me what….”

Tip 8 – Know the purpose of your investigation

Tip 9 – Draft a terms of reference

Tip 10 – Make a written investigation plan and update it as you go

Tip 11 – Credibility is only an issue when the facts aren’t clear

Tip 12 – Get specifics from complainants

Tip 13 – Include time, date , place in allegations

Tip 14 – Everyone has a right to silence in regard to criminal conduct

Tip 15 – Invite witnesses to bring a support person

Tip 16 – Keep complainants and respondents informed during the investigation

Tip 17 – Ensure the chain of evidence for digital data

Tip 18 – Digital data can be manipulated

Tip 19 – Second hand accounts can be used but are less reliable than fist hand accounts

Tip 20 – Give respondents enough time to respond

Tip 21 – Give respondents enough information to respond

Tip 22 – Verify signature on documents if you going to rely on them

Tip 23 – Provide support services for all parties to an investigation

Tip 24 – Avoid advocating for either side before the investigation is complete

Tip 25 – Don’t comment on the outcome until the report is approved

Tip 26 – Move the respondent not the complainant

Tip 27 – Ask witnesses to sign all notes/statements or records of interviews

Tip 28 – Only suspend a person during an investigation where serious misconduct is likely to have occurred

Tip 29 – Know your policy and process before you start

Tip 30 – Don’t promise confidentiality if you can’t guarantee it

Tip 31 – Decide who will get a copy of your report before you write it.