Investigations and the Art of the Interview

Inge Sebyan Black, Lawrence J. Fennelly

• Publisher: Butterworth-Heinemann
• Year: 2020
• ISBN:
  9780128226629
• Edition: 4
• Topic: Politics & International Relations
• Subtopic: Political Corruption & Misconduct
• Index: Politics & International Relations

The Art of Investigative Interviewing, Fourth Edition, builds on the successes of the previous editions providing the reader guidance on conducting investigative interviews, both ethically and professionally. The book can be used by anyone who is involved in investigative interviewing. It is a perfect combination of real, practical, and effective techniques, procedures, and actual cases. The reader learns key elements of investigative interviewing, such as human psychology, proper interview preparation, tactical concepts, controlling the interview environment, and evaluating the evidence obtained from the interview.

New to this edition will be coverage of Open Source Intelligence (OSINT) tools, workplace investigations, fraud investigations and the role of audit. Larry Fennelly joins original author Inge Sebyan Black, both well-known and respected in the field, providing everything an interviewer needs to know in order to conduct successful interviews with integrity and within the law. Written for anyone involved in investigative interviewing.

• Provides guidance on conducting investigative interviews professionally and ethically
• Includes instructions for obtaining voluntary confessions from suspects, victims, and witnesses
• Builds a foundation of effective interviewing skills with guidance on every step of the process, from preparation to evaluating evidence obtained in an interview

Part 1

Introduction

Chapter 1: Miranda warning and the equivalent across the globe

Abstract

When the Miranda warning issue came out and it was official on midnight, I was in Harvard Square with a Cambridge Police Officer Dominic Scalice, who had just made an arrest. He got on the radio and announced he had just made an arrest of John Smith and was now going to read him his Miranda warning, which he did over the police radio. This is and always been considered very serious when making a lawful arrest.

Keywords

Miranda v. Arizona; Miranda warning; Remain silent; Attorney; Evidence; Given to criminal suspects

Introduction

Before we discuss interviewing, we must discuss the Miranda rights or equivalent in other jurisdictions. Police officers in many countries including the United States are required to give a person their Miranda rights prior to any interrogation or questioning of a person. Investigators in the private sector, such as corporation investigators and private investigators, are not required to give the Miranda prior to an interview.

There are 108 jurisdictions across the globe that have warnings similar to the Miranda warning used in the United States. Although the warnings across the globe vary, they include the right to remain silent and the right to legal counsel. Many countries also specify that a person arrested or detained has the right to be informed of the reasons for the arrest or detention or of the charges being brought. Additionally, in some countries, a person also has the right to have these rights explained in a language the person can understand. Commonwealth countries have traditionally followed the English Judges’ Rules developed in the early 20th century, and some continue to do so, while many Member States of the European Union (EU) have adopted an EU directive on the issue.^aPoints of variance among the countries concern the timing of the warning and whether the detainee is told that the fact of remaining silent will or will not be used in legal proceedings.

Miranda v. Arizona 1966

Before a person in police custody or otherwise deprived of freedom “in any significant way” may be interviewed or interrogated, Miranda warnings must be given (Miranda v. Arizona [1966]). The exact wording of the Miranda rights statement is not specified in the Supreme Court’s historic decision. Instead, law enforcement agencies have created a basic set of simple statements that can be read to accused persons prior to any questioning. Here are paraphrased examples of the basic Miranda rights statements, along with related excerpts from the Supreme Court decision:

1. 1. You have the right to remain silent.
2. 2. Anything you say can be used against you in a court of law.
3. 3. You have the right to have an attorney present now and during any future questioning.
4. 4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.
5. 5. Do you understand these rights?

These warnings have come to be known as the Miranda warnings, after the US Supreme Court case in which they were enumerated. The Miranda warnings apply only to “investigative custodial questioning aimed at eliciting evidence of a crime.” Subjects in custody must understand what they are being told. The investigator is not permitted to bully a suspect into talking once they decide not to do so nor may the investigator attempt to dissuade a suspect from speaking with a lawyer. This ensures that subjects in custody know that they have the right to remain silent. After receiving the required warnings and expressing willingness to answer questions, a subject in custody may legally be interrogated. It is unnecessary to embellish the Miranda warnings or to add new warnings. Similarly, it is unnecessary to use the exact language contained in Miranda.

Canada, Canadian Charter of Rights and Freedoms, 1982

In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Although not the exact wording with the right to silence, the Supreme Court has found the right protected as a principle of fundamental justice. The right to remain silent is implied in the Charter and varies from one police force to another.

To summarize the rights given by the Royal Canadian Mounted Police are as follows:

1. 1. Right to silence
   1. a. The person does not have to say anything unless they wish.
   2. b. The person is not promised anything from what they say and not threatened if they chose not to talk.
   3. c. Anything a person states can be used as evidence.
2. 2. Right to legal counsel
   1. a. The person has the right to retain and instruct the counsel of their choice immediately without delay.
   2. b. Before answering any questions, they can contact their counsel or get free advice from Duty Counsel. If they want Legal Aid, they are provided with the number, along with a phone.

A detained person also has the right to be informed of why they are being questioned and to have the detention legally validated. If not legally detained, they can be released.

These warnings are given to criminal suspects in police custody before an interrogation begins.

Mexico

Under the Mexican Constitution a person suspected of a crime has the right to be notified, both at the time of arrest and when in court before a judge.

They are advised as follows:

1. 1. They are told why they are arrested and the acts they are accused of committing.
2. 2. They are told that they have the right to remain silent, and that if they chose to remain silent, it will not be held against them.
3. 3. The person is told that they may have an attorney of their choice or one appointed by the government under circumstances.

Australia

There are no “Miranda” rights read to someone suspected of committing a crime in Australia; however, by law, suspects have the right to remain silent. Although Australia does not have a federal legislative bill of rights for those arrested or detained, the right to remain silent is recognized to be within the right to not self-incriminate. At the federal level the Crimes Act 1914 (Cth), with amendments made in 1991, does requires that a person arrested be informed of their right to talk with a friend, relative, or lawyer. It also stipulates that the investigator must advise the arrested person, before any questioning starts, that they have the right to remain silent and that anything they say or do can be used as evidence.

South Korea

South Korea has some rights similar to the Miranda through The Constitution of the Republic of Korea (South Korea). A suspect must be informed of the reason of their arrest and told that they have a right to counsel immediately. The prosecutor or senior judicial official must advise the arrested person, prior to any interrogation:

1. 1. They have the right to remain silent, which will not be held against them.
2. 2. If the suspect makes a statement waiving the right to refuse to make a statement, this may be used as evidence for being guilty.
3. 3. The suspect has a right to counsel and the counsel can be present in the interrogation.

Protocol is if the suspect chooses to remain silent and chooses to have counsel, this shall be written down in their own handwriting. If the person is not able to write, their answer shall be written for them along with a required printed signature or seal.

Austria, Austrian Code of Criminal Procedures

Austrian Code of Criminal Procedure requires the accused person be informed of essential rights as soon as possible. The accused must be informed of the following:

1. 1. Their right to remain silent or make a statement.
2. 2. Their right to counsel (as long as there is no chance of evidence destruction).
3. 3. The accused is informed that any statement can be used as evidence against him or her.

England and Wales

Rights for arrested persons follow the Codes of Practice, within the Police and Criminal Evidence Act 1984. When an arrest is made, the officer must

1. 1. inform the person that they are under arrest
2. 2. the reason for the arrest
3. 3. that the person can remain silent, however it could harm their defense
4. 4. they are advised that anything they say can be used against them.

There are circumstances that allow the court in England and Wales to draw adverse implications from the person’s failure to say anything about their involvement in the criminal offense.

European Union

Right to information in criminal proceedings

Under Directive 2012/13 the EU has established common minimum standards on the rights of suspects. This is a Miranda-type warning.

The Directive requires Member States to follow national law in regard to accused persons as soon as possible:

1. 1. Person is advised that they have the right to counsel.
2. 2. Advised of free legal advice and conditions for such.
3. 3. Advised of the reason of the arrest.
4. 4. Advise of the right to interpretation and translation services.
5. 5. The right to...