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Police Discipline: Part Two, The Investigation Interview

In Part One, the complaint process was discussed. There was an emphasis on the value of record-keeping for the purpose of early intervention. The next phase is the investigation interviews of the complainant and the officer or officers accused of misconduct.

Interviewing is one of the primary ways information is gathered. It is an important skill of any investigator, or for that matter, any police officer. How the interviews are handled is as important as the results. A complainant may still be unhappy even if he/she receives the results he/she thought were appropriate since he/she was not treated with respect. Exactly the same principle applies to accused officers.

They may be cleared of the accusation but upset with how they were treated by the investigator. This type of interviewing requires good planning and control of one’s emotions if it is to be successfully accomplished. How a complainant and officer view how they were treated is just as important as the final outcome. The key to this is for the interviewer to have the right attitude and to follow some simple steps.

 

Interviewing the Complainant

When an officer is assigned to take a complaint from a citizen, he/she should realize that most citizens are reluctant to come forward and do so with great trepidation. It is good to remind yourself of how you would want a close relative treated. The complaint may be unjustified or frivolous, but remember that it’s important to the complainant or he/she wouldn’t be there.

As with all interviews or interrogations, there are certain things we cannot control. It is important for us then to control those things we can. If the complaint is being taken in our environment, such as the station, we should control everything we can. Comfortable surroundings, without interruptions or distractions should be basic. Our seating arrangement should eliminate any barriers to communication. As an example, the traditional office setup of desk with chairs in front is designed to show authority and to separate, not to communicate. The whole environment should be customer friendly!

If the interview is taking place outside of the agency, your control will be limited. Even so, you may be able to control the communication environment somewhat. For example, salesmen are taught a principle: “Take it to the kitchen table.” The principle, of course, being this is where the family is most relaxed. Another example would be if you are offered water or coffee, it would be advisable to accept. Many people consider it rude to refuse such an offer.

Let’s assume the complainant has come to headquarters and you are meeting in an office. Meet and greet him/her in a friendly, businesslike manner. Start by introducing yourself and offering a place to sit followed up by an offer of water, coffee, etc. Your objective in the first few minutes of discussion is to build rapport and to show empathy for his/her complaint. Make sure before the complainant starts to tell his/her story, you thanked him/her for bringing the problem to the department’s attention.  

Explain your role as the investigator, what will happen, and estimated timetable. Explain who will make the final decision and what the investigation will cover. One very important point to ask is, “How would you like to see this resolved?” The complainant’s answer will give you great insight into the reasonableness and possibly motivation.

The next step simply follows good interview techniques. Let the complainant tell his/her story without interruption. Encourage him/her to give details by using verbal and nonverbal questions. Verbal questions are such things as commenting, “I see,” “Go on,” or “Continue.” Nonverbal questions are such things as simply nodding your head or sitting silent. This will help the complainant give full details.

It is permissible to take notes during this time, but keep them to an absolute minimum. Only jot down what you wish to clarify later. Once done telling his/her story, then you may ask your questions. Do not try to justify the officer’s actions or even explain at this point the officer was within policy.

With your questions, you should strive to clarify anything you do not understand and to get specific details. You then should state your understanding of what occurred. If there is an accusation of any type of force, photographs would be in order. If it is clear, based upon what the complainant has told you that the officer was within policy, this is your opportunity to explain that to the complainant. If he/she understands the explanation and is satisfied, no further investigation would be required. When you feel you have gathered all evidence available, you may end the interview.

Ask if the complainant has any questions and give him/her contact information such as your card, so you may be contacted if he/she has additional information or concerns. Walk him/her to door and thank him/her again for bringing this to the department’s attention. When the complainant has left, you may continue your investigation. One of the first things that may be of value is to check on the complainant and any contacts your agency has had with him/her. You may find the complainant is a chronic complainer. This does not preclude that this complaint is legitimate.

Continue your investigation by conducting interviews of, witnesses, supervisors, and reviewing any physical evidence such as video, dispatch tapes, etc. When the officer is interviewed will be dependent upon practices in your jurisdiction. Supervisors and administrative investigators should be aware of any rights provided under state statute in addition to union contracts. Most of those rights are what a professional administrative investigator or supervisor would do. There are many examples.

The interview should be conducted at a reasonable hour when the officer is on duty, unless seriousness of incident requires immediate action. The interview should take place in the internal affairs office or at the precinct or police unit. The officer should be informed of name and rank of commanding officer in charge of investigation, name and rank of the interviewing officer, and all persons present. The officer should be informed of the nature of the investigation before the interview begins.

If two investigators are present, only one should ask questions. The interview sessions shall be reasonable in length and the officer should be allowed time for personal breaks and rest periods that are reasonable. The officer should not be subject to offensive language or threats. If the interview is recorded (as it should be), the officer should be given a copy of the recording within a reasonable time.

If you are in a state such as Florida or California that has an extensive Officer’s Bill of Rights, you should be familiar with all sections. A union contract may also have similar requirements. Even if you are in a jurisdiction that has no union or other protective statutes, there is no reason not to treat the officer fairly and with courtesy. Please remember that most officers are cleared of complaints and that person you are interviewing may be your boss at some later date. There is no need to make unnecessary enemies.

 

Interviewing the Officer

The setting should be as nonthreatening as possible with privacy. The interviewer should take time to build rapport and show empathy for the concerns of the officer. Rapport building with the officer should be fairly easy since you both have common department experiences. An explanation of the department’s obligation to investigate all complaints should be explained. Your specific role and what will happen and when should be reviewed with the officer.

You may feel that officers understand the internal affairs process but most do not. Explain who will have the final decision and what the investigation will cover. Be sure you comply with all requirements in any union contract. For example, some union contracts, under

National Labor

Relations Board v. J Weingarten

, allow the officer to have a union rep available to observe and consult. At this point, you should give the Garrity notice.

Since the Garrity decision

(Garrity v. New Jersey, 1967

) is at the heart of administrative investigations, it requires some explanation here. The United States Supreme Court ruled in the Garrity decision that public employees must answer questions related to their duties. It further went on to explain that public employees have a constitutional right against self-incrimination in criminal proceedings.

This means that officers must answer your questions fully and honestly in regard to their duties but nothing they say or fruits thereof may be used in criminal proceedings. Any statement or any information you gain from that statement cannot be used against the officer in criminal proceedings. If an officer fails to cooperate in an administrative investigation by refusing to answer questions, the officer may be disciplined appropriately. This may very well include termination.

However, what the officer tells you cannot be passed on to prosecutors, criminal investigators of your agency, or any other agency, without his/her consent. If a criminal investigation is conducted against the officer, that officer is entitled to all the rights of any suspect. He/she cannot be disciplined for exercising his/her Miranda rights.

The findings of any criminal investigation may be given to an administrative investigator. Therefore, if the complaint is one that has criminal implications, it is advisable to conduct the criminal investigation first. Administrative investigators should not be involved in conducting the criminal investigation or interview. Many examples of a Garrity warning can be found on the Internet.

As long as they meet the following principles they can be used: The officer must be informed that he/she must answer questions under the threat of disciplinary action. Questions must be specifically directed and narrowly related to the officer’s duties or fitness for duty. Officers must be advised, if they answer questions, that information will not be used against them in criminal proceedings.

Once all warnings and formalities are taken care of, you should start the interview. All the principles that were followed with the complainant should be followed with the officer. Be sure to ask the officer for other possible witnesses or physical evidence. Upon completing the interview, try to end on a positive note. Make sure you thank the officer for his/her cooperation. And remind him/her not to discuss the investigation with anyone other than his/her attorney or union representative. Walk the officer to the door.

At this point, you will either close the investigation or re-interview others to clarify any inconsistencies and/or gather other physical evidence that has come to light. After you have exhausted all leads, you will complete your report. This will be forwarded for the next step in the disciplinary process. This process varies from department to department depending upon union contracts, civil service statutes, and traditional practices. This process will be discussed in Part Three.

 

Joseph Koziol

has

25 years of law enforcement experience, served as chief of police for 17.5 years in four different departments in three different states. He retired from the Institute of Police Technology and Management in Jacksonville, Fla. He can be reached at jskoziol@att.net.



Published in Law and Order, Jul 2016

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