EXPO – CROSSING THE LINE
December 18, 2014 By Gord and Wayne
by Gord MacKinnon & Wayne Vanderlaan
We are often asked when lecturing on investigative interviewing if it is ever appropriate to directly accuse a subject of committing an offence. In other words, if a person is obviously lying or hiding something, should the interviewer not point this out so as not to appear like a naive fool?
The answer is always “NO”.
This topic is covered at length in the book
Let the case facts, evidence, witness statements etc., convey that the subject’s answers or denials are not entirely within reason. Use facts from your investigation to subtly challenge the subject’s account, timeline, sequence of events or other details to highlight the inconsistencies in their story.
One can also use simple common sense to point out where a story loses credibility. When all else fails, Canadian investigators also have the ability to use deceit and trickery to encourage a lying subject to admit all or part of the truth. These tools, however, must be used intelligently and reasonably in order for the evidence obtained to be acceptable in court.
We do not want to lose the common sense guidelines that the Supreme Court of Canada gave us in <Oickle, Singh and Sinclair,> known as the “Interrogation Trilogy”. It is this foundation that allows Canadian police investigators to use trickery and deceit within accepted guidelines in the interview room. The courts have ruled that the interviewing of suspects and persons of interest who may use various methods of obstruction and deflection can be approached by officers who use “legitimate means of persuasion” to overcome those efforts.
This allows Canadian police to be creative, provided they do not go too far. Most investigators would agree that this is a most valuable and welcome gift from the Supreme Court and one that, if lost, would make the detection and apprehension of serious crime that much more difficult.
Any time that you outright accuse someone you break a rapport that you can never get back. You have, in essence, “crossed a line” and can’t step back. Since rapport is essential, in most cases, to obtaining a confession from a subject, the last thing we want to do is throw it away.
Think of it this way; the subject may well be a seasoned liar, career criminal and/or just a very wily individual. He or she may not like the police, may not like being in the room with you or may be trying everything they can do to throw you off.
If you have followed the “non-accusatory” protocol you will have started the interview with techniques aimed at gaining and maintaining rapport. You have established a relationship with the subject and they likely are hoping that you will believe what they have to say. You are still in their “friend” category and have conveyed the message that you are not a threat to them. Why change that?
One of the best examples of this is OPP Det/Sgt. Jim Smyth’s interrogation of Russell Williams. It is a long interview, masterfully done by Smyth, and at no time does he ever accuse Williams of anything. Smyth takes himself out of the equation by referring to other experts and other evidence that Smyth himself purports to have no control over.
He uses phrases like “your boots walked up to Jessica Lloyds house” and “your tire marks [were found in the field next to her house]”. He then humbly submits that “I’m no tire expert” and no expert on shoe tread marks either but wonders what “the experts” will have to say. He also cleverly inserts that boot marks are like fingerprints (which is not entirely true!). In doing this Smyth remains a low key bystander, not an accuser, and has not broken rapport.
Late in the interview, when Williams is breaking down, he reaches out to Smyth when they are talking about minimizing the impact on Williams’ wife and the Canadian Forces by asking “So how do we do that?” Williams then asks for a map and directs Smyth to the location of Jessica Lloyd’s body. Note the word “we” – they are still a “team”! Smyth, by keeping himself in a non-accusatory role, was able to maintain rapport with Williams throughout his confession.
This is a very important concept in light of some recent cases in the news where the interviewers and the subject became confrontational with each other. An accusatory approach can be an easy target for criticism, especially when the interviewer and subject end up shouting at each other or the interviewer appears to be overly aggressive or insistent. With these video interviews being released to the media in recent cases, we can expect police to come under heavy scrutiny for their methods and tactics.
This does not mean that you have to be timid or afraid to “push” a subject during an interview. However, you must also know when and how to “back off” and possibly regroup in order to come back from a different angle. A well conducted investigative interview should never deteriorate into a confrontation. When that happens you just know that rapport has now been broken and the interview likely has been lost.
Wayne Vanderlaan and I will return to the
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