CONDUCTING INTERNAL INVESTIGATIONS · 2013. 2. 18. · Institute 2 3|Confidential & Proprietary...

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CONDUCTING INTERNAL INVESTIGATIONS

HCCA MANAGED CARE COMPLIANCE CONFERENCE

CLEAR LAW INSTITUTE, LLC

February 24, 2013

Michael W. Johnson, Esq. [email protected]

(703) 312‐9440

www.ClearLawInstitute.com

2 | Confidential & Proprietary

About Michael JohnsonCEO of Clear Law Institute

Former attorney in the US DOJ Trains on techniques for spotting signs of deception and truthfulness and on advanced interviewing techniques

Provides training to the EEOC, United Nations, and numerous companies such as Google, Northrop Grumman, and Alcoa on how to conduct investigations

Expert witness testifying to the adequacy of employers’ internal investigations

Graduate of Duke University and Harvard Law School




Overview

Spotting signs of deception and truthfulness Dealing with “he said/she said” cases or cases where there are no eyewitnesses

Video: Police officers interview Kevin

Guidelines for examining cues to deception

Video: Drew Peterson

Advanced Interviewing Techniques Funnel Method

Techniques for making the interview more cognitively demanding

Spotting Signs of Deception




How do I deal with “He Said/She Said”situations?

Dr. Jennifer Smith’s assistant, Tony, complains that Dr. Smith frequently makes sexual comments to him at work. Tony also alleges that last week she tried to kiss him in her office. Dr. Smith denies the allegations completely. You investigate the matter and you believe that Tony is being truthful. However, you can find no eyewitnesses to support Tony’s allegations.

Could the employer legitimately conclude that Dr. Smith is guilty and discipline her?


Why try to reach a conclusion even in “he said/she” cases?

What message do you send to potential victims or whistleblowers?

What message do you send to potential wrongdoers?

But what if I get sued?




Credibility Determination Factors

Inherent plausibility of the story

Past record

Motive to falsify

Corroboration

Demeanor


Polling Question: Are you good at detecting lies?

I believe I can correctly identify if a person is lying the following percentage of time:

a) 25%

b) 50%

c) 75%

d) 90%

e) 100%




Police interview of a murder suspect

Kevin comes home from college for the Christmas holidays and sees his girlfriend in her apartment that night. According to Kevin, the next day, she doesn’t respond to his calls or text messages, which was unusual. Kevin, his mom, and a friend go to his girlfriend’s apartment to check on her.

They find her lying on the floor nude. Kevin lays on top of her and tries to give her mouth‐to‐mouth resuscitation but she is dead. The police believe this was Kevin’s attempt to contaminate the crime scene.

She has cuts on her neck and appears to have been bludgeoned to death with a lamp. Kevin’s fingerprints are found on the light bulb.


Video of Kevin’s Interview




Did Kevin show any “cues” to deception?

If so, what were they?


Kevin’s behavior

Rubs hand across mouth

Hands become fidgety

“I did not do this”

“I swear to God”

Rubs hands through hair

Defeated position

Puts hand over face

Feet crossed underneath chair

“Some scumbag did this to my girlfriend and I'm going to get put in jail for it.”




Polling Question: Kevin is:

A. Innocent

B. Guilty


Polling Question: Which are reliable predictors of deception?

a) Gaze aversion (person stops looking you in the eye)

b) Person is fidgety

c) Places hand over mouth when speaking

d) All of the above

e) None of the above




Examining “cues to deception”

We tend to pay attention to “cues to deception”that have not been scientifically validated and are not reliable predictors of lying

Three factors that impact cues to deception

Emotion

Cognitive Effort

Attempted Behavioral Control

Example: Gaze aversion


Questions

The average person can correctly spot what percentage of lies?

People who have received the most commonly provided deception training to law enforcement officers can correctly spot what percentage of lies?

People do better at spotting lies by just hearing the person or by both hearing and seeing the person?




Common Errors in Lie Detection

Poor interviewing style

“Othello” Error

Confirmation Bias

Forgetting about individual differences

Fundamental attribution error

Facial appearance heuristic


Guidelines for examining verbal and non‐verbal behaviors

Look only for cues that have been scientifically tested and shown to occur more often by liars than truth tellers

But remember there’s no such thing as “Pinocchio’s nose”

Look for clusters of cues to deception

When you spot a cue or especially a cluster of cues

Can alert you to probe further on the topic

Ultimately could be part or your overall credibility determination




Non‐verbal cues to deception?

Illustrators (arm, hand, finger movements to illustrate what they are saying)?

Leg and foot movements?

Pressing their lips together?

Frequency of smiling?


Is anything suspicious about these responses?

Q: Alice, have you ever run your fingers through Ronald’s hair?

A: Not that I recall.

Q: Henry, have you ever billed for a medical procedure that was not actually performed?

A: Not really. Speaking of billing problems, you should hear about how Todd and Mark bill dialysis procedures?




Verbal content cues to deception?

Directness of answers?

User fewer first person pronouns (I, me)?

Passive vs. Active Voice?


Verbal cues to deception?

Length of responses?

Details?

Pauses before answering question and while speaking?




Verbal cues to deception?

Repeating of words and phrases?

Use of “um,” “er”, “you know,” etc.?

Rate of speech?

Pitch of voice?


Drew Peterson



Interviewing Techniques


Style and structure of Interview

Primary goal is simply to get the person to talk

Develop rapport

Introduction

Setting expectations

Employment history and/or duties Taking notes

Sound of silence

Structuring question topics

Journalist not a prosecutor

Be suspicious but don’t show suspicion




“Funnel Method”

Broad, open‐ended questions

Don’t interrupt the witness

Prompt the witness to keep talking

Follow up

Contextual questions

Fill in gaps

Review


Increasing cognitive load in interviews

With an ideal interviewing protocol, you would be able to elicit different responses in liars and truth tellers.

The fear or concern‐based approach doesn’t accomplish this well.

Increasing cognitive load may accomplish this

Lying can be very difficult and can take a lot of mental concentration

Look for ways to make the interview more cognitively demanding so that you can better differentiate between truth‐tellers and liars




Techniques for increasing cognitive load in interviews

Information gathering style

Reverse order storytelling

Use of unexpected questions

Probing an alibi

If you believe witness made up an answer on the spot

Requests for drawings

Temporal questions

Strategic presentation of evidence


Clear Law Institute Services

Client‐Specific Training (on‐site or by webinar) Investigating Employee Misconduct (1 to 2 day class)

Writing Investigative Reports

Employment Law for Supervisors

Online Self‐Paced Training (health care setting)Workplace Harassment Prevention

Other Ethics and Compliance topics

Consulting Investigation policy and handbook creation

Investigations (in‐person, by phone, or Skype)




Questions?

Michael Johnson

CEO

Clear Law Institute

[email protected]

703‐312‐9440

CONDUCTING INTERNAL INVESTIGATIONS · 2013. 2. 18. · Institute 2 3|Confidential & Proprietary...

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