Working PIby Kelly E. Riddle, Kelmar Global
Getting a written confession in a civil case seems like a good idea, until it isn’t. Those of us with law enforcement backgrounds were taught the standard processes of investigations that included getting signed confessions when you could. However, in civil cases this is not always the best rule to follow. Communicating with the client before interviews are conducted is imperative. In fact, you should understand the client’s direction at the beginning of the case. Your goal to solve the case, get confessions and wrap the case in a nice bow may not be in the client’s best interest.
Private investigators are often brought into corporate cases involving the disappearance of inventory, misappropriation of funds, sexual harassment, written or verbal threats, and similar circumstances. It is also common for individuals to hire investigators to look into estate and executor misconduct, contractual issues with contractors, missing relatives, harassment and many other circumstances. While many of these may start off just trying to confirm if the client’s suspicions appear to have merit, they can quickly develop into criminal violations. How these are handled may be beneficial or not in the best interest of your client.
During the initial consultation with the client, you need to determine if they do in fact want to prepare the findings for criminal proceedings, should the circumstances be present. This is important as it prepares the investigator for the methods they can use during the investigation. For instance, if your client had $500,000 misappropriated from their company, the return of the money may be a secondary concern to the client if they have stockholders. In these situations, the potential for investors to become aware of internal issues could drive the stock down by millions of dollars and have longer lasting reputational impacts. Knowing this ahead of time allows the investigator to adjust their tactics during the interview process. The threat of prosecution can be a valuable tool during an interview and can still be used. However, this information allows the investigator to advise the subject that if they cooperate, the investigator may be able to convince the client not to prosecute, knowing full well that is the case. This line of communication should always be one that is done with careful consideration as you never want to tell the subject 100 percent that they will not be prosecuted. Even if they confess, you may subsequently determine they are guilty of many more violations.
The use of a written confession is almost always frowned upon by law enforcement because they have to conduct their own investigation. In doing so, they will need to follow the tenants of the law, including advising them of their rights. Additionally, should you get the person to sign a confession, you probably didn’t have the law enforcement credentials or jurisdiction required which again, requires law enforcement to conduct their own investigation.
Clients often push the investigator to have an employee sign a confession during the investigative interview so they can follow this up with a promissory note to repay the funds. This is not good for several reasons, including the risk that this could be considered coercion and intimidation. While many clients “know the person embezzled $500,000,” they may not have acted alone. An initial audit by the client usually is not the final figure and an in-depth evaluation may determine that they took three times that amount.
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If they sign a confession admitting to embezzling $500,000, good luck getting anything more than that amount. In fact, good luck getting them to repay any of the funds. If they did not have financial issues, they most likely would not be stealing funds in the first place. Should law enforcement become involved, you very well could have nullified the ability to prosecute for the actual amount taken.
I have had some Human Resources personnel request a signed confession be obtained to help deter any potential wrongful termination lawsuits. My first question is related to whether the employee was a model employee or if they had any previous issues. It is very possible that the employee was a problem throughout their employment, and they had ample reasons for termination prior to this event. Regardless, the investigator’s written report, affidavit and testimony would offset this concern.
Some clients are persistent in wanting a signed confession. This is where you can educate your client about short-term emotional satisfaction versus long-term success. Using the client’s knowledge of their business and employees certainly can help by providing the investigator with their opinion of who they suspect and who the good employees are. I have found that interviewing the good employees first helps to identify the cliques, things “everyone knows”, and who they believe may have been involved in the situation. As you work through the good employees, this allows you to tell the suspects that according to the information you developed, you have put the pieces together. They will know that you did interviews and will be unsure of what was stated during the interviews.
Another useful tactic for the investigator to use is the RICO statute, also known as the organized crime statute. This is utilized by law enforcement when a conspiracy can be proven with multiple perpetrators involved. When conducting interviews with suspects who are on the fence about confessing, you can ask them if they know what the RICO statute is and how it could apply to the situation at hand. Without threatening, you can simply explain how law enforcement can initiate a RICO case if they find there are multiple subjects involved in the commission of a crime. If successful, the punishment for the perpetrators can be much more severe and a petition to seize their assets to repay the victims can be applied.
The investigator should also use psychological enhancements during the interview. Criminals in general don’t think they are a bad person so during the questioning you can allude to that characteristic by telling them they appear to be a good person who just took advantage of an opportunity or the company’s lack of proper security protocols.
During the initial interview with the client, you should have also agreed to the procedures should a verbal confession be obtained. In most circumstances, it is better to advise the subject that they are not to return to the property and trespassing charges could be initiated if they do. The name and telephone number for a company contact person should be provided and they should be instructed to only contact that point of contact should they need anything. Any belongings in their desk or locker should be gathered and shipped, or a time should be arranged for them to pick them up. You should not allow them access to the computer where they could delete information or to a desk or locker where they could have a weapon. The person should then be escorted to their vehicle by security.
The process of interviewing and obtaining confessions in civil cases are similar to those in criminal cases. However, civil cases may not result in criminal charges based on the client’s circumstances. The client may consider the fact that you were able to solve their issue with minimal disruption or reputational liability a resounding success.
About the Author
Kelly E. Riddle is the President of Kelmar Global Investigations and has more than 41 years of investigative experience. He earned a Bachelor of Science degree in Criminal Justice from the University of North Alabama. He was chosen as the “PI of the Year” by the National Association of Investigative Specialists, while PI Magazine named Mr. Riddle the #1 PI in the U.S. Kelly is the past President of the Texas Association of Licensed Investigators and is on the Florida Association of Private Investigators Advisory Board. He founded the PI Institute of Education in 1989, which provides online learning. Kelly has published 16 books, over 40 articles, and spoken at over 650 events.
We’re always listening. Send your story submission/idea to the Editor: kendra@orep.org.
