The internal investigation process is wrought with complexities for a law enforcement organization. Police administrators are constantly faced with political pressure, media attention, the requirements of legal and collective bargaining agreements, and the protection of the community in the conduct of all internal investigations. With such an intense and demanding responsibility, the search for the truth can result in the violation of the rights of the suspected or accused officer.
As such, police administrators need not only have a keen understanding of the legal and administrative requirements of conducting administrative interviews, but more importantly, patience and an understanding of process so as the rights of all involved parties are protected. This article examines the legal, process, and psychological requirements of the administrative interview.
There are three major legal considerations in the administrative interview process—criminal, internal, and civil. They should also be considered as a hierarchy in the process. The criminal should take precedence as if criminal conduct is involved, every measure should be taken to ensure that the involved officer is brought to justice.
If the allegation results in a sustained complaint for misconduct, then the rules of engagement become quite different. And finally, if a civil litigation is brought, then a third set of rules applies. The police administrator and investigative teams all need a clear understanding of the roles and requirements in order to ensure that each investigation is conducted to legal standards.
The criminal investigation should always prevail as the highest priority and all protections of the 5th Amendment should reign. The foundational principle is the protections of the Miranda rule. In Miranda v. Arizona (1966)
the United States Supreme Court decided that suspects could not be compelled to give self incriminating statements unless certain requirements were met. The offering and waiver of the right to counsel, the voluntariness of the confession, a knowing or awareness of the waiver, custodial interrogation, and the like are basic requirements of the law.
When the criminal investigator begins work in a reported homicide, the investigator will work towards identifying a suspect and understanding the unique aspects in the case so as during the interrogation process, the suspect can be questioned concerning all aspects of the case with respect to the circumstances of the homicide, possible defenses that the suspect may offer which may need to be overcome in the court case presentation, challenged with inconsistencies when the suspect is caught in a lie, as well as others.
When a criminal investigator begins work in a police involved shooting wherein a reported suspect is killed, does the same process take place? While the criminal investigator must be equally as exhausting in case investigation and research, the approach is considerably different.
In both cases, the circumstances are similar, a criminal suspect and an officer are the only ones respectively who can provide you with the facts as they perceive them. Physical evidence will also play a role in the final outcome. In both cases, the defense of justification may exist. And in both cases, failing to develop the proper rapport, follow procedure, and comply with the law may either afford a criminal the chance to return to the street or an officer who is potentially guilty of criminal conduct to continue to wear the uniform.
In these examples, the overwhelming majority of police involved shootings are justified and the officer is not held liable in any criminal matter. The fact of the matter remains that in the first example, the citizen is potentially culpable, while the officer, is potentially exonerated.
When an investigator approaches these types of cases, tenacity and thorough investigative technique should be the watchwords and both subjects should be treated with respect and dignity. In most all research and writing in the area of criminal interrogation the recommended strategies are to provide an environment wherein the suspect will voluntarily provide the information needed.
This methodology needs to also transcend the interview of police personnel in allegations of any type of criminal conduct. The presumption of guilty until proven innocent only seems to apply to police officers even though it is a direct contradiction to the edicts of the United States Constitution.
In both cases, the result was a homicide. In review of the incidents, one may be a drug deal gone awry wherein a suspect is wholly culpable for the murder of another. In the latter case, the circumstances may have been an officer who responded to a 911 call and during the progression of an incident may have been forced to employ deadly physical force to protect their life or the life of another. This is the stark difference between the two and the reason that they are quite different situations.
The police involved shooting described is analogous to a home owner who surprises a burglar in their residence and uses deadly physical force to protect themselves or their family. A presumption under the law provides for this as a justifiable homicide. When assigned this case, the criminal investigator would still be responsible for tenacious and thorough investigation, but would enter the investigation with a far different perspective. In this case the officer, just as in the case of the homeowner, is the victim and not the suspect in the final analysis.Internal Investigations
In assignment of an internal investigation, the internal investigator has a far different set of rules to comply with as well as far greater control and latitude over the interview process. Police officers can be compelled as a term and condition of employment to not only provide a statement with respect to matters related to job function, but can also be held accountable for the truthfulness of that statement. With this type of discretionary power comes an even greater responsibility. Actions in these cases that overstep boundaries can result in not only the loss of the criminal case, but also the potential for an officer who is guilty of misconduct being returned to their original assignment.
A very clear line of demarcation must be drawn between criminal and internal investigations because of the Garrity v. New Jersey rule (1967)
wherein public employees cannot be compelled to give incriminating statements under penalty of termination of employment that may also be later used in a criminal case.
And while our ultimate goal should be the determination of the truth, it should not be at the unnecessary or illegal expense of our personnel.Civil Investigations
Civil investigations are yet another piece of the puzzle. Civil investigations stem from litigation that usually involves the vicarious chain in a police organization. Prior to this, a criminal or internal investigation may have been completed. The civil claims investigation will involve a similar set of evidentiary rules as the internal as most evidence is admissible and the level of proof in a case is by a preponderance of evidence. The difference is that a criminal investigator and internal investigator will conduct the former examples respectively, while a special investigator, or more likely, a municipal attorney will conduct the civil interview.
The other difference is that plaintiffs are seeking compensatory and sometimes punitive monetary damages that may severely impact the municipality and the involved officer. Even if the officer is successful in his or her defense in a criminal and internal investigation, the opposite may be true in the civil.
There are clearly some overlapping concerns in the conduct of all three interviews. The first and foremost is to know the case before an interview proceeds. From a logistical standpoint, you only want to conduct the interview once. Not being armed with vital case information can prevent this from occurring as follow-up interviews only add to confusion in the case as well as anxiety on the part of all involved.
During the interview process, clearly define your role in the investigation. In the case of the use of deadly force, the interviewee should know if you’re the criminal investigator or the internal investigator. If this is not clear to the subject, a later claim may be that the criminal investigation was conducted under the auspices of an internal investigation and thus any statements gained most likely will be suppressed because of a violation of the Garrity rule. Always place notification with the subject of purpose and intent of the interview, and that if this is the criminal interview, that the internal investigator will be a separate and distinct interview process.
When conducting the interview, stay within the boundaries of the role. If conducting a criminal interview, then your exploratory line of questioning should be limited to the Penal Law and justification issues under criminal statutes if applicable. Do not intrude into internal or civil matters as they are not germane to the criminal case. You will also not want to confuse your position as the criminal investigator in any subsequent proceeding.
As an internal investigator however, the exploration is actually concerned with all three areas, criminal, internal, and civil. This is born from identifying the type of actions taken, if they are justified under criminal statutes as well as myriad other laws, rules, and regulations, and civil implications as these records may be discoverable in the civil trial as well.
Limit the number of individuals involved in the interview process. Officers involved in critical incidents will be subjected to an immense amount of confusion and stress as a result of the incident alone. The officer should not be subjected to multi-level and frequent interviews about the incident. This will add unnecessary confusion and versions of the incident that may only be pieces as opposed to the complete version that can be culled from a structured and professional interview.
Afford the opportunity for union or legal representation. We are mandated to provide representation to criminal suspects for the most minor as well as heinous crimes. Our personnel are afforded those same rights through case law when they are the target or subject of the investigation.
Think along the lines of defined boundaries. In the administrative interview, there are things we can do, things we can’t do, and things we shouldn’t do. These boundaries comprise the legal, ethical, and moral standards of the profession that we are sworn to uphold no matter the circumstances.
One additional brief point is the promotion of an understanding of the psychological issues involved in this process. How an internal investigator approaches and handles a case could be to the detriment of all involved. In interviewing the subject or target officer, the internal investigator should demonstrate the same level of compassion for the involved officer than for a complainant or witness. The internal investigator’s job is to determine the facts.
Having compassion and empathy for those involved in these tenuous situations only strengthens our humanity as a profession. Even a rudimentary understanding of post-traumatic stress and the psychological impact of being involved in such an incident has to be weighed against the methods used in the investigation. Causing more damage does no good for the case, community, department, and especially the involved officer.
While the three legal components of criminal, internal, and civil can be seen as interrelated and interdependent, so is the entire progression of the legal, process, and psychological issues. The internal investigator must have a keen knowledge of all aspects and responsibilities of the internal investigation process and develop a strategy that meets these requirements in the unique circumstances of every case investigated.
Most investigations proceed from the perspective that the officer is the accused or suspected party, while many lead to the conclusion that the officer was merely a witness. Other cases lead to the tragedy that the officer was a victim of not only a violent attack, but sadly, a dysfunctional system.
Frank A. Colaprete, Ed.D., is on the faculty of the Criminal Justice Department and Institute for Public Safety Policy Studies at the State University of New York College at Brockport. He is also a police lieutenant who has been in the law enforcement field since 1985. Feedback can be forwarded to the author at email@example.com.
Photographs by Christy Whitehead.