Characteristics of the Good Interviewer

Not every police officer is interested in being a good interviewer or has the capacity to be a good interviewer. There are personalities in law enforcement that lend themselves to being a natural interviewer, however even officers who are not naturally gifted at interviewing can practice, take courses and learn interviewing techniques from mentors. Good interviewers are either born with, or develop with practice, the following common characteristics.

1. They are able to bond and create a relationship with the subject. This is a theme throughout this book because it is the most critical component of communication in law enforcement. Officers must be able to dissociate themselves from their feelings towards people whose lifestyles they may not agree with, and who are suspected of committing crimes repugnant to the officer. The officer must at times draw upon their own life stories to create a bond and to demonstrate to suspects and witnesses that they share common interests and life stories. These strategies of bonding allow suspects and witnesses to feel more comfortable with the interviewer. As such, suspects and witnesses are more likely to speak with an interviewer.
2. They display empathy when appropriate. Interviewers must be able to demonstrate to the suspect or witness that they are able to relate with a deep and emotional understanding of what the subject has been through, is going through at the moment and will potentially be going through in the future. This ability will allow subjects to sense a bond from someone who cares about their plight. Interviewers must take care not to assume that they have experienced exactly what the subject has experienced, or feel exactly what the subject feels. Interviewers should instead state how they think the subject would feel in that situation. Interviewers may also relate their own stories to the subject, but should be mindful not to one-up the subject or try to equate their story to the situation in which the subject finds themselves.
   

   

3. They actively listen to what the subject says. Interviewers must listen. As mentioned previously, good interviewers must listen to every word. This, at times, is difficult when interviewers are also trying to satisfy essential elements of a charge, or discover information they need for a complete understanding of the subject’s involvement in a case. Interviewers must focus on every word that is said, and know that each word is spoken by the subject for a reason. The inclusion of a specific word may seem innocuous, however at times it may have intrinsic meaning that should be explored by the interviewer. Too often interviewers are not focused on what the subject is stating, thereby dismissing the true meaning.
4. They are able to ask the right questions to achieve their goals. Interviewers must understand what their goals are and listen to the information the subject is relaying to them. When appropriate, the interviewer should recall what information has been missed, or what needs to be clarified, and then add the details through well-articulated, open-ended questions that are understood by the subject. Interviewers, while listening to the subject, should note questions as they arise, so they will not forget the questions when it is time for them to be asked. Investigators should also consider writing down key questions before the interview even starts. As the subject speaks and answers the questions, the investigator marks off the question so it is not asked at the end. Not repeating questions is a way to display to the subject that the interviewer has been listening. Subjects will express frustration when the interviewer asks questions after the subject has provided information that would qualify as the answer.
5. They display confident and appropriate body language. While we know that interviewers must be aware of the body language of the subject, it is equally important for the interviewer to be aware of their own body language, and the information they are transmitting to the subject.  Interviewers must be aware that their body language may project their own negative emotions, such as boredom, disgust, anger or fear. Interviewers must project a body language that exhibits confidence. This will demonstrate to the subject that they are able to rely upon the interviewer, or that they ought to consider being truthful to the interviewer. Likewise, interviewers should show interest and respect to the subject. This can be achieved through body language that demonstrates empathy though nodding, a concerned look and leaning in. Conversely, investigators should monitor their own body language so they don’t project emotions that ought to be concealed. At times this can be an act put on by the interviewer to conceal these negative emotions, but this skill is part of being an interviewer who is committed to receiving information that others may not be able to receive.
6. They use gestures. Interviewers should gesture with their hands to explain points. This part of normal conversation helps to ‘normalize’ what, to the subject, is likely a scary and unforgettable experience. Gestures should be in keeping with normal conversations and should be clearly non-threatening.
7. They maintain eye contact. Most subjects subconsciously equate eye contact with active listening. Eye contact can at times be unnatural and, if inappropriate, can lead some subjects to become stressed, e.g., an interviewer who never looks down while taking notes and instead maintains eye contact. Such eye contact is unnatural and may appear to a subject as somewhat creepy. Eye contact should be natural and focused in a non-threatening way. Much like with body language, interviewers must be aware of the need to break away from eye contact if the subject indicates that they are uncomfortable and need time away from the interviewer’s eye contact. Usually, subjects will want eye contact as confirmation that the interviewer is listening and is giving them the respect they crave.
8. They show appropriate enthusiasm. As well as professional demands, interviewers have personal demands that may at times diminish the interviewer’s enthusiasm. A case may be one of the least important cases the investigator is working on. Interviewers must be aware of these feelings and develop strategies to help them avoid looking and acting unenthusiastic in the interviews. Interviewers should state that the case is important, and that they want to get the truth and require the help of the subject to do so. Showing enthusiasm relies upon demonstrating the previous traits. If these traits are followed, the subject will believe that the interviewer is enthusiastic about their case and is treating the case as serious.
9. They are non-accusatorial. Regardless of the situation, the interviewer should exhibit neutrality about the behavior of the subject. At times this will be hard to do, but the interviewer must always be mindful that people are reluctant to talk to those that are accusatorial. Subjects are much more likely to talk to interviewers who project respect for the subject by treating them as an equal.
10. They display interest in the case. So often, interviewers may lack faith in the case. They may believe that the victim or witness is lying and that the case has no merit. Interviewers may also believe that the case, while important, is unsolvable. However, interviewers must be aware that any case is solvable, given the right conditions. Sources may come forward or forensic evidence may appear that pushes forward what was previously considered an unsolvable case. Interviewers must always consider how they want to appear if the case is presented in court and the interviewer’s negative attitude is revealed.

All interviewers should prepare before every interview. They should understand all the issues surrounding the interview, including:

1. What are the key facts needed?
2. What information does the witness likely possess that is necessary to form a complete picture of the case?
3. What are the elements of the charge that are needed to prove the case?
4. What is relevant versus irrelevant information?
5. Questions should be open-ended and interviewers should avoid direct, short-answer questions such as:
   “What color was his coat?”Or“Was he wearing a red coat?”
6. The question should be phrased:
   “What was he wearing?”

What is Investigative Interviewing

Before unravelling the many recognized methods of investigative interviewing, it is important to have a core understanding of the intention of its use and what it actually is. Traditionally, when we think of interviewing in its everyday context, we perhaps have images of a news journalist with a microphone asking questions of someone following an incident, or reporting on a newsworthy local or international story. We also may picture a manager and her team sitting across from a nervous potential employee.

In this chapter we will focus on investigative interviews. These images are somewhat relevant to the investigative interviewing, however each style of interview is designed to elicit answers in very different ways., We must consider the person being interviewed and choose an appropriate interview technique. Witnesses, suspects and victims all have different involvement with and emotional reactions to questions. What type of questions, how they are posed, and in what format, are real considerations for the investigator. Not only do we need to consider the type of interview technique against the classification of the subject, but also the social standing of that person, be that age, mental awareness or medical status.

A parent interacting with their child is an excellent example of interviewing, and a good place to start this chapter. The way the information is relayed to the child may affect the child’s reaction or response. If a child is remorseful about something they have done, and is already admitting their understanding of doing wrong and what they should have done, it leaves the parent with very little to do in the way of an interview. However, if that child is defiant and covering up their involvement in an incident, the parent has to use tact, wit and experience to unravel the sequence of events and get to the truth. Ultimately, the last thing a parent wants is to place so much pressure on the child that they confess to the wrongdoing regardless of actual guilt, to satisfy the parent’s need to find an answer, or to end the

questioning, or simply because they don’t see an alternative. In this case, the child  gives up trying to tell the truth under such opposing questioning. How many of us are aware of younger siblings taking the blame for older siblings, or more savvy older siblings quickly passing the blame to their younger sibling? Now, a parent can record these confessions on the camera of a cell phone and taunt children with them when they are older. Such a basic format of recording an interview is powerful, capturing that moment in time. Later in this chapter we will discuss the importance of note-taking accuracy and how that may be achieved.

When considering police-style interviews, it should be remembered that interviewing skills are developed through ongoing training, practice and experience gained from feedback and assessment. These interviews may be taking place at considerably varied locations, at any time of the day or night, or in any weather condition. The interactions can take minutes or many hours or even days. Interviewing conditions will vary, as will the relationship of the interviewer and the interviewee. A victim of a crime or accident will feel and display different emotions than a suspect or a witness.

An interview can take many forms. It can be conducted in many places and recorded in many ways. The goal of the investigating officer is to develop an interpersonal connection with the interviewee, to draw out key and pertinent information, and record the findings as accurately as possible. The interviewer must make sure they are left with no doubt that neither witnesses nor suspects are being deceitful. If the interviewer suspects that they are, they should highlight this information and make sure it is utilized in the case to underline the truth of what actually occurred.

Interviewing Versus Interrogation

Often the terms, “investigation” and “interrogation” are used without regard to their true meaning, but if we consider the words themselves, they have vastly different connotations in society. If a child at school was involved in a minor playground incident, whereby another student fell over and grazed a knee, a school follow-up to the incident would be expected. The teacher would conduct a soft interview or a simple string of questions to ask what happened. This would be considered a normal practice; when the child returned home and told their parents what had occurred, the parents would not be too concerned about the interview. If that child returned home, appeared upset and said they had been interrogated, there might be a slightly different response from the parent. The different word likely paints a powerful picture in the mind of a parent.

The word “interview” means the views between people. The word “interrogation” has a much harsher image and a somewhat unsavory implication of someone being deprived of needed comforts, repeatedly questioned, deprived of contact, and hours upon hours of pressured verbal conversation delivered in an oppressive manner to draw out a confession. The interrogation tends to home in on a confession, with the assumption of guilt. The expected outcome of the interrogation is a perceived successful result for the interrogator.  Maybe this is why police departments fully utilize the term “interview” and not “interrogation”. The interview in investigations is a two-way communication, and, if done correctly, draws out the truth and a reliable response. This two-way conversation helps to build rapport between the interviewer and interviewee, and may lead to much more than the initial required information. A suspect may turn informer or divulge other criminality, and a witness may trust the interviewer with information leading to other investigations or community incidents. An interrogation perhaps assumes guilt, which flies in the face of the assumption in western culture that people are innocent until proven otherwise. If a suspect is not given the opportunity to express their innocence, perhaps the interview would be called an interrogation. In plain language, what sounds more acceptable, “I was interviewed by the police and I decided to tell them” or “I was interrogated by the police and I decided to tell them”?

Why is Interviewing Important?

Most police departments operate according to strategic goals similar to large businesses. Within these goals are core principles and values. Often these values include crime prevention, crime reduction and, of course, crime detection. Some succinct strategies and educational concepts in the prevention and reduction of crime will overlap and influence another value. When we consider the detection of crime, we often refer to the investigation. It is unfortunate if a crime is attempted or completed, but the public depends upon the police officer to seek the answers as to why the crime was committed, how, and of course, by whom. The investigation is conducted with stringent rules in place to protect intrusion upon societal norms. The investigation must conform to laws and be completed with integrity.

At the core of their lengthy training, officers learn how to be respectful whilst prying into people’s lifestyles. Whether they are walking the community sidewalks, answering public enquiries by telephone, or sitting opposite a violent prisoner in an interview room, the officers play a huge part in the investigations. These wide-ranging investigations may include crime, public enquiries, road traffic accidents, missing people, property complaints, civil disagreements or a community issue. Every officer will have a new problem to solve many times a day. As their careers unfold, officers who become good at their job learn the essential skills of effectively communicating, investigating and recording findings.

There are many forms of investigation and many variations. A traffic accident may need immediate scene isolation to protect those involved and to others attending to offer aid. It may require access routes to allow those others to respond, and exit routes for people to bypass the site of the accident. It may require scene mapping and accident reconstruction, and arrests may need to be made. This investigation would not be complete if those involved and those who saw the incident were not interviewed. A murder scene offers similar challenges. The search of the scene may expand many blocks or even kilometers. Continuity of evidence needs to be proved, and witness interviews may be crucial in unravelling what occurred. The complexity of a murder is equally as challenging, especially if the deceased victim was the only person known to have seen the attacker.

Whatever the crime or incident, we should never lose sight of the fact that a suspect is usually aware of their involvement. Some simply will not be willing to admit guilt; others will be undecided on what to admit; others may view the interview as closure on their actions and be willing or even relieved to discuss their involvement. An open-minded investigator willing to work with the suspect may be able, during a well-planned interview, to find facts or circumstances that add to the case beyond the confession.

We mustn’t limit the use of the term “interview” to suspects. Officers also use extremely important interview techniques to gain valuable evidence from witnesses and victims.

“A major factor that determines whether or not a crime is solved is the completeness and accuracy of the witness account”.

(Milne & Bull, 1999, p 1.) quoted in Schollum, 2005, p.37.

What a suspect is willing to say can be juxtaposed on the observations, or recall, of the people who saw the event or were part of that event. The victim and suspect may provide the best account, but a third party watching the event could give an important, unbiased and unemotional view.  Often, following a short verbal explanation, a witness statement is the first statement in an investigation, and as such should be thorough and open in nature. Getting someone to describe what could be a prolonged and intricate incident in such detail that the investigation will quickly lead to a suspect and remain true and accurate in detail in a court case many months later , is a difficult skill to master is to. While, in a simple street robbery, where a male suspect punches his victim, steals a cell phone and runs off, evidentially, it is ideal for a statement to be taken from the victim immediately, however they may be in need of medical care. Officers may, therefore, rely on a third party witness. The difficulty with this concept is that the third party, who did not expect the incident, may not have been paying attention to it and may have seen or heard only part of the incident. They may be unsure of what was unfolding, or why. They will be asked to describe the suspect’s sex, height weight, age, colour, clothing, hairstyle, and whether or not they were wearing glasses, clean shaven, agile, muscular or overweight? Were they accompanied, where did they come from, who with, what exactly occurred, what did the victim do, where did the suspect go, how long did the viewing of the incident last? There are so many details, and all have to be drawn out logically into a detailed statement.

The victim statement is also considered a witness statement, but it brings different complications. Often, they unexpectedly become victims. Taken by surprise by an ill-willed act, they maybe emotional, angry, or shocked, and unable to recall what happened at all. They may also be reluctant to talk, or provide a confusing or illogical statement. They may fear reprisals for giving information of any kind, or they may be completely or selectively deceitful to protect their own, or another, role.

Nothing is more satisfying to an investigator than compiling clear and reputable evidence. Ideally, this is followed up by a suspect interview in which the main suspect provides a full and frank confession describing what they did, why, who with, where and how they did it. This type of evidence is extremely powerful and, when extracted in the spirit and direction of the law, compelling in court. Admissions of guilt can also take place in the absence of other collaborating evidence. Suspects can confess criminality to protect others or themselves, receive attention, or simply to benefit personally from such compensations as shelter, food or medical care.

Interviewing the suspect, victim or witness assists in determining what will and will not be presented as part of a case. Often the investigation will not lead to charges or prosecution; sometimes it leads to the realization that no offence actually occurred, or something else is afoot. The Criminal Justice System depends on high quality investigations and decision-making, as well as evidence presented to charge standards. It must consider many aspects of public interest. An interview may help to reduce not-guilty pleas, mistaken identity, or other conditions that would otherwise require trials. The interview may determine the correct disposition for a case other than prosecution, and allow intelligence to be gained for future use, to prevent or at least mitigate an ongoing situation.

The Use of Interviewing in Policing

Many styles or methods of interviewing are conducted daily by law enforcement agencies. As we have established, any two-way communication can be deemed an interview. Information sought by police questioning people on the streets in the form of street checks, or “carding”, as it is often called, is type of interviewing that seems to attract the most attention in the daily news media. The manner in which officers conduct themselves during an interview, be that a simple spontaneous street interview or a pre-planned interview of a homicide suspect, is heavily scrutinized, and can make or break a criminal case. Human rights and legal frameworks are in place to protect the community from heavy-handed methods of policing.

While interviewing is used in most industries on a daily basis as a basic communication necessity, in the context of police or law enforcement it suggests a different meaning. Perhaps this underlines the importance of some of the Nine Principles of Sir Robert Peele.

Peele’s principals highlight the societal expectations that the police must adhere to as their mandate in their quest to uphold the public peace and obey the law.  Any deviance from the role, any breach of trust, or sign of unfair treatment to the general public, can have a negative effect on those relationships. Each police force/service/department tries to break down poor perceptions of their authority, by participating in the community, amending their strategy to fit their community, and forging public relationships. Perception of that police-public trust varies greatly, but is never strengthened if sections of the community feel oppressed or isolated by the officers assigned to protect and serve.

So, why do police interview? Simply put, most contacts with the public could be construed as interviews. Police officers walk a thin line between community engagement and wittingly or unwittingly gaining intelligence, or information. The “who, what, why, when and where” questions are all relevant when we view the term “interview” through the law enforcement lens.

As you read the following two scenarios, ask the question: Is this an interview? If so, why?

The scenarios are the same but the perceptions and realities are vastly different. Why is this? Why would one point of view be that the officer is doing a great job and another that the officer may be overbearing or selective in his or her work? As the officer, you can rationalize your actions; you spoke to the boy; there was no intention to marginalize him; the beer bottle was of little or no consequence and was just part of the conversation to get to know the boy. You are a basketball coach, and were wondering if the lads played, since they were tall. Yet through all of the light-hearted banter, you feltresentment from the boy. The boy’s perspective is totally different: he is a youth; his friends have been in trouble and he is trying to avoid it. He has perhaps listened to his friend’s advice, and although he has done nothing wrong, as soon as the uniformed officer approaches he feels compelled to stand up for himself. He senses possible blame for the broken beer bottle and feels obligated to disassociate. Would he have done so if a familiar member of the community had walked past him, or would he have been less obliged to mention it? Did the uniformed police officer’s role in society make a difference to his behaviour?

The exercise demonstrates a real struggle for law enforcement. Their social status alone and the principles mentioned by Peele are finely balanced between the need to be part of the community and being alienated or seen as oppressors. How do you maintain rapport with communities that may have broken trust values or simply choose not to want to communicate with police officers? Was this exchange an interview? Should it be recorded?

Let’s examine a few facts that support not classifying the communication an interview

• The communication was spontaneous.
• It was in public so there was no privacy invasion.
• There was no report of criminality associated with the youth.
• There were no consequences attached to answering or not answering the questions.
• There wasn’t a legal caution or notice of the interview being formal.
• It was a low key and non- chat, filtered through some attempt at age-appropriate humour.
• In asking if the boys played basketball, the officer intended to keep them engaged and get to know them.

These facts support it being a more formal interview:

• The officer is on duty, in uniform, performing street duties.
• They have prior knowledge of youth creating issues.
• They attributed the broken glass to beer; they can see the boys were underage.
• When they asked for the boys’ names, they created a perception that they want to identify the boys.

Canadians should always remember that they are protected under the Charter of Rights and Freedoms. Section 7 indicates, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (Guide to the Canadian Charter of Rights and Freedoms retrieved 15 January 2020).

The boy has a right under the Charter not to have his liberty breached, not to be detained without reason, and not to be concerned for his security and right to free speech. In contrast, the officer has a Common Law duty to:

1. preserve the PEACE;
2. protect life and property;
3. prevent crime;
4. enforce the law; and
5. apprehend offenders.

This example clearly articulates that by walking the beat and talking to people the officer was carrying out the first common law duty. The officer would also state that number 2 and 3 were indirect consequences, as would be number 4, if required; at no stage did the officer need to consider number 5.

There is a fine line between the police officer’s intention and the perception of a community member. We could add other characters into this scenario, perhaps the elderly couple who call the police daily to report the noise in their street; they never see an officer but saw this one doing his job. Perhaps we add the parents of the boy, worried that their boy was stopped and had his name taken. Perhaps we consider the point of view of the couple who were enjoying their walk and felt they helped by talking to a new officer. We can argue both ways: this could have been an interview or one of thousands of benign interactions the officer will have in their career.

Interviews in law enforcement vary in their tactical use. Like the example above, perhaps the most underestimated use of interviews is the public’s daily interaction with officers. They attend thousands of calls for service, ask questions of victims and witnesses, and ask neighbourhood-related questions of the general public. Each interaction and interview helps to form part of the officer’s strategic picture of the community. Each officer interacts with their colleagues or submits related and unrelated reports which, unwittingly, may later form part of an intelligence of criminal evidence package. Simply put, the officer will never know when this interaction may prove helpful another time.

There are varying levels of street interviewing. As outlined above with the boy, an officer can have a mere conversation without the intention of relating it to any criminality or specific call, a naturally inquisitive conversation that helps create rapport and increases the officer’s recognition recognize within the community. Other street interviews may include patrolling specific areas of the community if there has been a spree of break and enters. Officers want to show residents that their presence, asking questions of people and trying to ascertain what has changed and what or who may be causing the spree, is not only supportive, but also useful. These canvassing opportunities are potentially vital in identifying lines of enquiry to follow. A similar but perhaps more controversial situation is created when street officers flood an area and checking people on the street, viewing them as suspects or persons of interest. For decades, street officers have used this tactic, however it is now recognized that stopping people in the street to question them and take and log their personal details can have massive implications in isolating communities from the police. The RCMP and other police agencies in Canada are reflecting on the use of street checks and the way in which they are identified as such, conducted and recorded. “”On 23 April, 2018, the RCMP initiated a review into policies and procedures for street checks. This occurred after Justice Tulloch’s independent street checks review (Toronto), and the Vancouver Police Department report that defended street interactions, along with the Halifax Police Department’s recent decision to ban street checks as detailed in their report. The Nova Scotia RCMP released new guidelines for street checks on 1 April, 2019 including guidance on “bias-free policing”.

“We wanted to release these policies proactively to ensure our communities and stakeholders are aware of the standards the RCMP abides by,” says Insp. Rob Doyle, Acting Officer in Charge of Halifax District RCMP”.

A street interview with a witness, a potential suspect, or a victim is generally verbal but pertinent points are recorded verbatim in notebooks or on voice recorders in the street, or summarized shortly after. Depending upon the file and interaction, the notes may be attached to a court file. Officers often conduct these interviews in their police cruisers, especially if people prefer to be seated or need to be somewhat separated, sheltered or detained.

Officers can ask that the witnesses attend a police station, and the suspect may be escorted to a local station or jail as part of a detention. Audio or video recorded interviews are more common at the station.  Specialized interview suites are extremely advantageous for interviewing children, victims and witnesses of more sensitive subject matter.

Police interview training in Canadian law enforcement agencies somewhat depends upon need and location. It is difficult to obtain and maintain national standards across Canada, with such a variety in the ability of departments to uphold the changing demands of investigations. Currently, there is no single framework for interviewing standards. Nonetheless, departments adhere to very strict rules, best practices, in-house procedures and protocols and actually utilize similar methods.

National frameworks of investigative interviewing exist in other countries. The New Zealand Police has a four-level national framework for investigative interviewing. This framework includes a hierarchical modular training system to achieve professionalism and integrity, and a supervisory component for those responsible for supervising investigative interviewers. The framework is summarized as follows:

• Level 1: Foundation- provides foundation interviewing skills for all recruits and constables, including free recall and conversation management.
• Level 2: Advanced – consolidates and advances the skills learned in Level 1 (for all investigators).
• Level 3: Specialist – includes enhanced cognitive interviewing (word document), interviewing for major crimes and with interviewees requiring special consideration (for a variety of specialist interviewers of both suspects and witnesses).
• Level 4: Advisory – provides advice, management and co-ordination of interviewing in major operations (for interview advisors).

This framework was partially designed to professionalize the approach to interviewing, and solidify the importance of being fair and respectful, and maintaining the dignity of the interviewee. Using the framework, the interviewer has ownership of their trained level and can strive for the next, and organizations can ensure that the best practices outlined in the courses are maintained and ethical considerations are considered. (Retrieved from Investigative interviewing doctrine [PDF]).

The RCMP considered existing framework models when reviewing the Reid model of interviewing. The RCMP looked at the UK’s PEACE model because the Reid model had been criticized, especially by the media and academics. The PEACE model, however, was widely praised for its non-confrontational approach and inclusion of input from legal personnel and academics. The RCMP used the PEACE model to help build the Phased Interview Model, for the following reason:

“In the past, there was a belief that you could fit the same approach to any interview, which you can’t. Interviewing is a very dynamic thing.”

Parker, L.(2017) “The art of an effective interview, why non-accusatory is the new normal”, Royal Canadian Mounted Police, vol.79. No.1. (Accessed:03 February 2020).

Legal Ramifications of Interviewing

Officers are expected to conduct their interviews in an ethical way, maintaining the dignity of the interviewee and not utilizing coercion and trickery. Ultimately, if the interview transcript finds its way into evidence, it may be scrutinized for the legalities of ”appropriate techniques and methods of interviewing. This is an intertwined and often complex area of law. Case law is regularly made and challenged. The Canadian Charter of Rights and Freedoms, part of Canada’s constitution, sets out the rights that individuals have when they have been arrested. The Criminal Code of Canada sets out Federal Laws and Procedure. Officers must abide by both; if they do not, or if there is doubt as to their conduct, the evidence could be nullified. Investigative approaches to interviewing vary, as do the people and experience of those involved as both the interviewer and the interviewee. Rules of Search and Seizure, Stop and Search, Arrest and Detention, and myriad supporting, yet opposing, legalities exist. Many cases are won and lost on whether or not evidence was gained lawfully. Interviewing can yield a massive amount of evidence that is quickly lost if the interview is considered inadmissible. Specialized police teams are formed and experienced interviewers are trained to deal with the more complex cases. The reality of unintended coercion in a child interview is an example of such an issue. A person considered vulnerable may agree with the interviewer’s words, just to try to please them. Likewise, an interviewee may claim their answers were given to cut short their detention, to please the interviewer, or simply to deflect the truth from some other person.

Another example of complex and unrelenting pressure placed upon officers is the case law developed in the Case of R v Stinchcombe. This case determines the duty of Crown Prosecutors to share all evidence accumulated against the suspect prior to criminal trial; interviewing and evidence gained thereafter falls under this requirement. (Stinchcombe and Crown Disclosure of Criminal Evidence retrieved 15 January 2020)

When we are discussing best practices for witness identification, we should also mention a case law from the UK which resulted in a useful mnemonic that is easy to remember and helps enormously in securing better quality eye witness evidence. The case is R v Turnbull: Court of Appeal [1977] QB 224 [PDF]. From this website comes the following description of the mnemonic ADVOKATE.

In 1976, in considering the case of R v Turnbull, the Court of Appeal created guidelines on the subject of identification, which have been followed in subsequent cases.

The points raised indicate the areas to which police officers must pay particular attention whenever they are involved in identification processes. This can be remembered with the assistance of the mnemonic ADVOKATE:

Amount of time under observation.

Distance from the eyewitness to the person or incident.

Visibility – including time of day, street lighting etc.

Obstructions – was there anything obstructing the view?

Known or seen before – did the witness know, or had they seen the suspect before?

Any reason to remember – was there something specific that made the person or incident memorable?

Time lapse – how long since the witness last saw the suspect?

Errors or material discrepancies – this means any material discrepancy between the description of the accused given to police by the witness when first seen by them and the actual appearance of the accused.

Not all of these points will apply to every statement. However, one must consider each point and record those points that do apply as part of the witness statement.

Recognized Models of Interviewing

It seems logical that people expect police officers to be trained and experienced in their role, whatever that role is. The skill of interviewing is one that not only stems from training but is developed over time. Simply put, the more interviews you do that are diverse in nature and scope, the more skilled you become.

Officers receive a complex and multi layered “basic” training schedule spanning many months and including intense legal, physical and skill-based scenarios. In truth there is not much “basic” about it. This is coupled with practical supervised patrolling and ongoing assessments. Officers are assessed in role-play scenarios where their ability to conduct street interviews, investigate crime and traffic offences, and sift through an abundance of legal material are tested. Once the recruits leave the Depot or Academy, they quickly develop the art of interviewing and listening. Their daily dependence upon an ability to ask questions, listen and record findings is monitored and tailored by supervisors and senior officers in the field. They learn quickly that interviewing is not always as depicted on television shows but is sometimes upsetting, personal in nature, sad, or conducted in highly stressful conditions or places, such as busy highways, public order environments or at often macabre scenes.

Once the basic skills are mastered, advanced courses are offered and specialist interviewers for specific roles are developed. Over the years, many models of interviewing have been prevalent in Canada. We shall now look at some of the prominent models and techniques namely: Cognitive Interviewing, Reid Model, PEACE Model, Phased Interview Model, and Child Interviewing.

Cognitive Interviewing

The Cognitive Interview (CI) is a method of interviewing that is generally utilized with eyewitnesses and victims. The method is supportive, and utilizes what is commonly known as the four retrievals.  It is meant to assist in memory and provide confidence in reducing inaccuracies.

Scenario

Mentally place yourself in a store; you are browsing a shelf for some candy. All of a sudden, two men start fighting. You try to avoid them as you exit the small store, and you see police arrive as you walk away. You later find out this was a very serious incident and the police want a statement from you. You contact them, and now you have to provide a statement.

At this stage of the scenario you may have some concerns. Perhaps you are concerned about what you saw, or what will happen if you give a statement? Did you actually see the right two men? Can you describe them? Who did what? Who was the aggressor? Where were they in the store? What were they wearing? Did they have weapons? So many thoughts, so much room for error. Being the good citizen that you are, you want to help and you want to ensure accuracy. Remember, you may have to give evidence in a year or so.

Luckily for you, the police are trained to assist in your memory recall. Having explained the likelihood of your evidence being used and how, they have put you at ease. By utilizing the CI approach, they have calmed your worries of providing misinformation. The police may not actually be aware of the source of their training or how it evolved to a practical tool, but it works. CI is born from techniques of four general memory retrieval rules based on the encoding specificity principle. Essentially, the assumption is that memory traces are usually complex with various kinds of information overload. The principals are:

• Memory deteriorates over time.
• Human memory has a limited capacity for storing information, as well as a reconstructive nature.
• A witness may incorrectly recall and subsequently report the events of a crime because they are reporting what their schema of a crime is, as opposed to what actually transpired.
• The recall of information from memory is influenced by the strategies used to gain access to that information.
  (Memon et al, 1995)

Reid Model-What is the REID Model?

The Reid Model was first developed by John E. Reid and Associates who began developing Investigative Interviewing and Interrogation techniques in 1947. It is suggested that the technique has grown to be the most widely used technique worldwide. Law enforcement officers were first offered the training in 1974, and the company website boasts that over 500,000 professionals in the law enforcement and security fields have attended the program since. It is used by the US Military, extensively across North America, and Canadian Police in every Province and Territory have been trained.

Originally established as the standard in the industry, the Reid Model incorporated Behaviour Symptom Analysis, the Behaviour Analysis Interview and the Reid Nine Steps of Interrogation as the foundation of its process. Courses and training are layered, so advanced training can be taken when candidates are skilled at previous levels. Taken from their training course description, their training includes:

• Interview and Interrogation Preparation;
• Distinction between a Non-Confrontational Interview and Interrogation;
• Proper Room Arrangement; and
• Factors Affecting the Subject’s Behaviour.

BEHAVIOR SYMPTOM ANALYSIS

• Evaluating;
• Attitudes;
• Nonverbal Behaviour;
• Verbal Behaviour; and
• Paralinguistic Behaviour.

BEHAVIOUR ANALYSIS INTERVIEW®

The Benefits of Conducting the Non-Confrontational interview prior to any interrogation:

• Analyzing Factual Information;
• Reid Behaviour Provoking Questions;
• The Baiting Technique;
• Investigative Questions;
• Hypothetical Questions; and
• Assessing the subject’s concerns.

THE INTERROGATION – Developing the truth

• Preparation prior to the interrogation – how to use the information developed during the interview to determine the most effective interrogation strategy; and
• Assessing the Suspect‘s fears, rationalizations and objections prior to the interrogation.

THE REID NINE STEPS OF INTERROGATION®

• Step 1: The Positive Confrontation/Benefit of the Transition Statement.
• Step 2: Theme Development
  • First Person Themes;
  • Third Person Themes; and
  • Personal Stories-Identifying the suspect’s Needs for committing the crime.
• Step 3: Handling Denials-
  • How to move past Denials;
    Addressing Suspect Challenges;
    Addressing the Suspect’s Request to see evidence;
    Introducing Evidence;
    Tactics to gain trust; and
    Tactics to change the suspect‘s perception.
• Step 4: Overcoming Objections
  • Handling Logical Challenges
• Step 5: Procurement and Retention of the Suspect’s Attention
  • Use of Role Reversal;
    Challenging the Suspect’s Values and Traits;
    Addressing the Suspect’s Fear of Consequences; and
    Addressing the Futility of continued denials.
• Step 6: Handling Suspect’s Passive Mood
  • Having the suspect verbalize agreement
• Step 7: Presenting the Alternative Question
  • Understanding the Alternative; and
    Using Positive and Negative Supporting Statements
• Step 8: Having the Suspect Orally Relate the Details of the Crime-
  • Committing the Suspect to the crime-
    Safeguards to protect the integrity of the confession
• Step 9: Elements of Oral and Written Statements

The model has been popular over many years, and boasts a high success rate for investigators to get confessions from previously unwilling subjects. Conversely, concerns exist about false confessions obtained from more vulnerable subjects. The founder, John Reid, is an American Psychologist who based his theory on the interview techniques he developed based on psychological principles. Three phases of interviewing begin with fact analysis, followed by the non-accusatory behaviour analysis interview, and then followed, if needed, by the Reid Nine Steps of Interrogation. It is relevant that the Reid Nine Steps of Interrogation are only utilized if the other two steps reveal the need. Reid’s technique builds on an accusatory style. The interviewer has a position of knowledge and explains that knowledge, building in the interviewee to tell the truth.

Here is an example of a simple question:

“Did you break the window by accident, or did you plan to break it?”

The question is very specific, it gives two options, one is admitting guilt occurring as a spontaneous accident (no mens rea) and the other is framed to include the intent to do the act (mens rea and actus reus). On the surface both are admissions that a window was broken and the interviewee was involved. Of course, there is another answer:

“I have no idea what you are asking me, I didn’t break a window.”

The line of questioning does not offer this answer as a choice; both are accusatory. This is a questioning technique called an “alternative question”. It is frowned-upon by critics, due to the psychological suggestion of guilt.

Exercise:

Think of 3 alternative-style questions you could ask that are similar in nature to the example above, in relation to fictitious crime or accusations. Try to vary the wording to hide the question technique amongst the various questions.

1

2

3

In summary, The Reid Model is still used and is a relevant method in modern policing, particularly in the United States. There are dangers of overzealous investigators applying too much pressure and refusing to accept denials as a possibility. There are also examples of investigators exaggerating evidential leads to encourage confessions and firmly establish their power in the interview relationship. The downside is a feeling of worthlessness and hopelessness in the interviewee’s mind, and a resignation to please the interviewer by confessing, to end the process.

PEACE Model-What is the PEACE Model?

Policing in the United Kingdom has always been progressive in nature. The subject of interviewing techniques has been topical since the inclusion of the Police and Criminal Evidence Act Codes in 1984. As the legislation guided, the police researchers and law enforcement worked together to enhance policing methods. The PEACE Model was widely introduced in England and Wales in the early 1990s. It was established by police officers working with psychologists in an attempt to prevent, or at least effect a huge reduction in, the number of false confessions. The PEACE Model was designed as a somewhat less aggressive method of interviewing.

It has definite sections that spell out the acronym PEACE:

• Planning and Preparation;
• Explain and Engage;
• Account, Clarification, Challenge;
• Closure; and
• Evaluation.

Planning and Preparation

This is the beginning of the interview and one of the most important phases in effective interviewing within the PEACE Model. The success of the interview and, consequently, the investigation could depend on it. Skilled investigators spend time in a planning session that takes account of all the available information and identifies the key issues and objectives required, even where it is essential that an early interview takes place.

Interviewers consider how to:

• create and record the interview plan;
• explore the characteristics of the interviewee;
• make practical arrangements for the interview; and
• make a written interview plan.

Interview Planning and Written Plan

When we consider an interview in the context of an investigator’s role, we can understand the importance of getting it right. The first aspect of the Planning and Preparation Phase is the plan.  The investigator may not have all the details of the offence at the time of the interview, but they will study and understand as much as possible, reviewing the details of the case, known or suspected. They will understand the known evidence and the relevant legislation. Ultimately, they need to have a clear understanding of the objective for the interview and, in a broader sense, how that interview fits into the investigation. Some important facts of the case can be established or negated with careful questioning. During this Interview plan there may be some consideration given as to which interviewee to interview first. If there are multiple interviews to be conducted, is one interviewee likely to provide more essential information than another, are any considerations of health, medication, wellness, or meal breaks for the interviewee? Of course, there may not be time, or it could be deemed inappropriate, but can an interview be delayed for a time to gather more evidence that would be beneficial to the interviewer or interviewee?

During this planning stage, interviewers need to understand the person they are about to interview. If the interviewer gets this wrong, all sorts of issues or accusations may present at a later date as part of a defense that could jeopardize a case.

How the interview will be conducted and where, as well as who will conduct the interview, are all considerations in the planning phase. Often the interviewer will be lucky to have spent valuable time making themselves as familiar with their subject as possible and they may have personally visited their address, searched them or their vehicle. They may have spoken to neighbors, family or other witnesses and used the information to build up an understanding of the interviewee.

The by no means exhaustive list of considerations includes:

• the age of the interviewee  are they deemed a youth or child by law, does the adult interviewee have learning needs? In both situations appropriate adult support may be required.
• Are there any cultural or religious considerations, language barriers?
• Does the interviewee have other needs such as child-care worries or a family member dependent upon them?
• Will the interviewee best respond to a male or female, of what age or culture?

Although such needs are not directly associated with the interview, the interviewee may not be as attentive, with these matters on their mind. It should also be recognized that not everyone is cooperative, and the safety and welfare of the interviewing officer is always a given concern. Gang affiliation, previous history, current behaviour, and sometimes just the interviewer’s intuition may be indicators that interviews can become a dangerous situation for interviewers.

Having planned and prepared some of the essential thoughts as to how the interview will be conducted and in what manner, the interviewer will then be encouraged to develop a written interview plan.  As discussed, there must be goals or aims for the interview, whether the interview is of a witness or suspect. If the interviewee is in custody, it is important for the interviewer to be mindful that there are rules as to the length of time a suspect can be held. Often known as the detention clock, it is a major factor impacting how much time the investigator has. Running out of time in the interview is a missed opportunity to gather evidence. The interviewer must remain aware of the location of the detention clock, and spend appropriate time on designated parts of the interview. It is essential to not allow the interview to go on too long. This is not as important in a witness interview, but is still affected by witness needs and investigator time for completing the task. It is important in both witness and suspect planning to know the elements of the offence, the points of law to use to shape the interview, and the questions to ask to help to ensure they are covered in enough detail. The interview must establish Mens Rea (mental element of the offence) and the Actus Reus (physical act)if an incident occurred as a result of an accident or unfortunate miscalculation.. Knowing when to bring exhibits or evidence into an interview is also essential, as can be the dynamic of two interviewers. It is important to know who the lead interviewer is and the role of the support interviewer. Everyone has heard of the term ’good cop, bad cop’, however interviews are not so definitive in real life. It may be that one investigator gets little response from the interviewee while the other is able to establish a rapport; maybe neither may make any headway. Flexibility is an essential part of the plan. Consideration as to what evidence will be discussed, in what order and by whom, will often make for a smoother and more professional interview.

Engage and Explain

The interview commences after the planning stage and the development of the written plan. It may seem logical, but other interview models fail to establish the importance of the interviewee. This is not always easy. Perhaps the person is well-known to police and well-practiced in interviews. Alternately, the person may be previously unknown to the police, therefore little information is available to make meaningful conversation. Listening is equally as important as talking. The skill of active listening develops as an investigator’s career unfolds.

The term “active listening” means, as it suggests, to listen with a purpose. The skill assists an interviewer to pick out themes, topics or pertinent points during the interview. It is also used to display an interest in what is being discussed. If the interviewee feels the interviewer is engaged and interested, it may encourage the flow of communication, which may in turn encourage the interviewee to release evidential information.

During the beginning of the interview, it is important to make sure the person knows the reason they are being interviewed and their status, and to get the person to explain their understanding of the explanation. This will prevent a suspect from claiming at a later date that they did not know why they were being spoken to under the circumstances that developed. Once the reason has been given, the roadmap of the interview should be given. For example:

“You were arrested this morning at about 4am for an assault outside the taxi centre on Fairwell Road. I am interviewing you to establish your involvement in the incident. Do you understand why you are being interviewed?”

Once the person acknowledges a positive understanding, the interview may continue; otherwise clarification of their understanding is sought again.

“So, in connection with the offence of assault for which you were arrested, I will talk to you about some key points which may include your reason for being at the taxi centre, the person you were with and why, and what occurred leading up to your arrest. I will also seek some clarification for some of your answers if I need to.” The interviewer should also confirm that the person being interviewed is not impaired, medically or otherwise, or confused, or under duress, since these will all be examined if the interview process is questioned in court or at a hearing. It is important to remind the interviewee that the interview is a process for police to establish truth and an opportunity for the interviewee to give their explanation of an event.

Account, Clarification, Challenge

There comes a stage in the plan and execution of the interview when the investigator must tighten up the interview and make sure they are hitting their interview goals. The PEACE Model emphasizes using easy-to-answer questions without ambiguity or trickery, and discourages jargon and over-complicated sentences. Although interrupting an answer is acceptable, it should be avoided if not used as a probe. The more a person talks, the more confident they may get. The use of silence is also a powerful tool; when one person doesn’t say anything for a minute or two, the other person may be prompted to open up.

The PEACE Model encourages open-ended questions to allow the person to expand their account or explanation. Open-ended questions encourage answers other than “yesor “no” or a prescribed short answer. This type of questioning is referred to as closed questioning. Examples of open-ended questions would be:

“Tell me about your involvement in….”

“How do you know the person?”

A closed question would be “Do you know this person?”

When a person is talking, their non-verbal behaviour, such as how and where they look, what their hands and feet do, and where they lean or don’t lean, can reveal important information. There are characteristics as to how a person pauses, when they reflect or make up answers, how they answer, or whether they stumble or use sounds, such as “er” or “um…” between their words. Trained investigators should pick up on such nuances. Open and closed questions are then used as required to clarify the larger topic and to make sure the goals of the interview are met.

Closure

Once the account has been given the interview should be concluded; this is an important part of the process. All of the relevant questions should have been answered; if not, a good reason should be established. The witness or suspect should have been given ample opportunity to contribute, or to add or clarify anything. Any signatures or legal or policy requirements of process should be met during the closure.

Evaluate

Once complete, the interview should be evaluated for evidentiary or informational value, and the content considered in the totality of the investigation. Did the interview change our opinion, add extra work, establish innocence or guilt, or implicate others? Is essential or urgent work, or some follow-up investigation required as a result? (Investigative interviewing accessed 05May2020)

Phased Interview Model

The Phased Interview Model was developed by the RCMP in response to legal attacks on and criticism of the Reid Model. Academics, the media, and industry experts warned of the perils of utilizing a guilt-presumptive model that influenced confessions. The resulting false confessions and involuntary statements were concerning. There were also concerns that the PEACE Model extensively used in the UK was being pushed in Canada without true understanding of it. It was considered perhaps too passive in nature, since it was based on a non-guilt presumption and non-confrontational questioning.

In 2012, RCMP officers spent extensive time with officers from the UK looking at the PEACE Model and being trained to the UK standards. Extensive research accompanied the visit, and a working group of subject experts was formed. The then existing model, ”structured Interview and Interrogation”, used by the RCMP, was also reviewed. (The RCMP Phased Interview Model For Suspects [PDF] retrieved 15 January 2020)

In their summary, the following comparisons were made by the working group:

The group also made comparisons in relation to the Reid Model:

Essentially, the two-year study established that the RCMP would proceed with a model that took the PEACE Model fundamentals but kept some aspects of the Reid Model where Canadian law and policing methods allowed. A hybrid model, now known as the Phased Interview Model, developed, and is now utilized across BC by many agencies. It is described as being more akin to the PEACE Model, with a little more application for the interviewer to be successful. Courses were rolled out in 2017; being relatively new, the success of this model is still being measured. (Canadian Police Knowledge Network retrieved 15 January 2020)

Interviewing Children and Vulnerable People.

The subject of interviewing adults is complex for law enforcement. Behind every interview are myriad defendable legal arguments. We have discussed the variance in interview techniques and the locations in which they may occur, and considered the concept of police responsibilities and duties and how that is perceived by communities. Officers face additional difficulties when they are required to interview people who, it could be argued, are not in a position to comprehend some or all of what is being asked. It is difficult to legally defend whether or not the interviewee’s comprehension is pure. Interviews are commonly defended as inadmissible as evidential value. Such defenses may hinge upon not only the subject’s ability to understand the questions, but the whether or not they will be compelling witnesses in court.

Children

Children at various ages can be influenced by those around them. Parents and guardians spend countless hours training and coercing children into making good life decisions, such as persuading a child to forego the bright candy at the store for a more nutritious snack. The naivety of a child is both positive and a barrier to effective communication. The difficulty with such a variance in the behaviour and skills of childhood communication, lies in establishing fact from fiction in their imagination. We also need to consider legal practices and adhere to law. In British Columbia, the law that protects children and youth from abuse and neglect is the Child, Family and Community Service Act. Under the Act, a child is defined as anyone under the age of 19; children aged 16 to 19 are defined as youth.  The Canada Evidence Act is clear in its message under Section 16.1 (1) that a person under fourteen years of age is presumed to have the capacity to testify, but a proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation. Legally, the burden is on the challenger to disprove the capacity to understand and respond to questions of someone aged under 14.. If this is proven, then the court has to conduct an enquiry to prove the real capacity of that witness.

Ultimately, the concern (particularly with younger children) is that they do not make compelling witnesses. We know that children grow at alarmingly different rates; growth charts and school exams are obvious measures. Cognitive growth is a harder medium to measure. A child’s account of an incident can be extremely believable, and weight can be given to the purest statement, but there is always the concern of imagination and willingness to please a parent, or even a police officer. It is important to be aware of the devastation that can be caused in the life of someone wrongfully accused of a crime, or the risk of a case being lost due to the testimony of a child witness.

An excellent source document is The RCMP Phased Interview Model for Children. The document was prepared by a team of experienced investigators, and highlights the pitfalls of such interviews as well as outlining best practices to law enforcement. It states that successful prosecution of a case of child abuse requires a team of professionals from many fields of work to obtain the evidence, provide medical care and support, and navigate the legal implications of the prosecution. The essential joint agency approach may include police, specialist interviewers, social services, child ministry teams, and special prosecutors, as well as specialized medical staff. The voice of the child is often a lone catalyst for such an investigation, and that child has likely been brought up to respect the word of the adult looking after them. Often, a child is influenced by people around them. Children have creative minds, and their life skills are evolving; to a child, the world is a playground where make-believe and reality can co-exist. This can be a difficult sequence of events to unravel. Children do not generally recall pertinent dates, times or locations, and have little regard for days or months, let alone the year.

The multiple agencies required in a case involving a child have different aspects to consider, including terminology and consolidated practices. The mere word “interview” can mean different things to the different agencies. A forensic interview is used to gain the facts and clarify what a child knows about an event or incident, yet a clinical interview is perhaps used by medical or support teams to be able to gain information to help support or treat a child. The term interview is used equally but means two very different things; both may be crucial in the way a case involving a child is investigated and handled.

The RCMP Guide provides excellent comparative information to help determine a child‘s developmental stage, which may not specifically align with their chronological age.

Exercise:

Consider yourself a police investigator assigned to a complex case involving a family. A 6-year-old boy and his 13-year-old sister have disclosed to their parents that an adult babysitter has been locking them in a cupboard under the stairs as a punishment for being naughty, and had allegedly been physically abusing them. What core skills or characteristics will you, as the investigator, need, to be successful with each child?

Having compiled your list of attributes, are there any that are more necessary than others, or are they equally important? Bear in mind that this is your point of view. What would the child want, need or best react to, and does this vary from child to child? Age, culture, and family circumstances all have a bearing on a child’s lifestyle. Building rapport may start with building trust. For some children this may not happen easily; other children have that trust.

Children- Legal Considerations

The paper THE RCMP PHASED INTERVIEW MODEL FOR CHILDREN is an excellent guide in relation to case law involving children and testimony. Subject to updated cases, these legal parameters may vary in time:

R V. MARQUARD, 1993 SCC

Marquard holds that testimonial competence relates to the capacity to observe, recollect and recall, and communicate.

R V. J.S., 2007 SCC

A witness may not be questioned about understanding the promise to tell the truth during the competency inquiry. However, the defense may question the child about competence during cross-examination. Responses of the child may only affect weight (probative vs. prejudicial affect) and credibility but not admissibility.

EVIDENCE OF VICTIM OR WITNESS UNDER 18 – S. 715.1(1) CC

Section 715.1(1) of the Criminal Code permits the submission of a video recorded statement into evidence if the witness is under the age of 18:

In any proceedings against an accused in which a victim or other witness was under the age of eighteen years at the time of the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.**A voir dire is required before admission of the video recording into evidence.

RELEVANT CASE LAW DECISIONS

R v. L. (D.O), 1993 SCC

In a case where the protection of s.715.1 is called upon, the child victim must testify at trial and attest to the truth of the statement made earlier as recorded by videotape. In addition to the child adopting all or part of her prior statements, other limitations exist in that the videotape will only be admissible for a victim under 18 years of age and the video must be made within a reasonable time. However, even before the videotape may be admitted, a voir dire must be held to review the contents of the tape and ensure that any statement made in the videotape conforms to the rules of evidence. Any statements which are in conflict with the rules of evidence may be expunged from the tape. There are a number of factors which the trial judge could take into account in exercising his or her decision to exclude a videotaped statement:

1. The form of questions used by any other person appearing in the videotaped statement;
2. any interest of anyone participating in the making of the statement;
3. the quality of the video and audio reproduction;
4. the presence or absence of inadmissible evidence in the statement;
5. the ability to eliminate inappropriate material by editing the tape;
6. whether other out-of-court statements by the complainant have been entered;
7. whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);
8. whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;
9. whether the trial is one by judge alone or by a jury; and
10. the amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described.

Legal considerations aside, there are also best practices to consider. One such best practice is that the child’s interview be video recorded. In any interview with a child, the form of questions is extremely important. A leading question (one that will take a child’s mind down a specific path towards an answer) is likely to be deemed inadmissible in court. Coercion, deliberate or otherwise, or leaving a court in any doubt that the child was answering to appease or please the interviewer, will negatively affect the case.

Exercise:

List some advantages of the video recorded interview:

1. 1. Example
   2. Example
   3. Example

There are cautions as well as advantages to the video recorded interview, including the fact that the overt presence of a video camera may worry the child, or even provide a platform to “perform”. The technology and its stability should be considered; good quality audio and picture clarity are great, but poor quality or poorly maintained video specimens create negative issues. Considerations for evidence continuity of the electronic exhibit include: who handled the disc, where the information was stored, and who possessed it. Continuity of evidence is an essential component of securing the evidence.

Child interviewing is a skill; specialized training is a necessity. As the United Kingdom developed their training to officers, they realized that as soon as an officer arrived at a scene or a home, or first spoke to the child, the content of the conversation and the other people present provided potential ammunition to a defense council to cast doubt on a case. In the mid-1990s, police were trained in the importance of documenting a conversation with a child from the beginning and throughout.

Imagine this scenario:

An officer (CONSTABLE Wendy Green) is called to attend #1 Smith Street. At 10:02 am she arrives and speaks to “Jimmy”, aged 6, and his mom. They are in the living room. In front of Jimmy, Mom explains that Jimmy has cigarette burns on his back and Dad has been causing them. Mom goes on to explain that Dad is a drug user and occasionally visits with friends. CONSTABLE Green asks Jimmy to lift his shirt and Jimmy obliges. Three round burns are apparent. CONSTABLE Green asks “Did Daddy do this?”

What are the issues that you see with this scenario so far? How could they be avoided? What would you consider doing differently? Is there anything wrong with the question?

It is a tough situation. Mom is irate and upset; Jimmy is comfortable to talk around Mom and confident in showing the officer his torso. Did the officer need to see the torso at this time? Is her question appropriate or considered leading? Back to the scenario…

Jimmy: Yes, Daddy did it (looks down and stops).

Mom: It’s okay, tell the officer.

CONSTABLE Green: You’re a brave boy. Tell me how Daddy did it.

Mom: It was with his cigarette. This was not an accident, I know it; he gets drunk.

CONSTABLE Green: Was Daddy drunk?

Jimmy: Yes, he drinks adult pop a lot.

Mom: That’s what we call vodka.

CONSTABLE Green: Did Daddy do it with a cigarette?

Jimmy: Yes, he was throwing me in the air; we were playing helicopters.

Given this short scenario, there may be further concerns about the contact and the method of receiving the information. The conversation took place in the presence of an apparently supportive parent. The officer would maintain that the questioning was simplistic and necessary to obtain basic facts.

The scenario develops to a point where PC Green decides that mom may also be involved in causing some injuries. Mom admits that she has an alcohol dependency and at times has difficulty remembering events. Jimmy intimates that mom hurts his wrists when she is telling him off. PC Green calls her supervisor and asks for some advice. They decide to bring Mom into the station for an interview, and to transport Jimmy to the child interview suite at the Child Ministry. PC Green is met by PC Lamb, and they transport Jimmy in an unmarked vehicle to the Ministry Suite, a journey of about ten minutes.

The conversation so far would be recorded in PC Green’s notebook. It was almost formal in nature and it is clear that it would be a significant part of the case. What is sometimes not so obviously noteworthy is the casual conversation with Jimmy in the back of the police car. These ten minutes of time are very relevant. What did Jimmy say? What questions were asked? They would be easy to recall today, but in nine months or more will PC Green and PC Lamb remember the topics of conversation, and will their accounts be the same?

To circumvent this issue, the UK developed a best practice where the first officer engaging Jimmy, in this case PC Green, would start a child interview log. The log would note the time and date, and the initial interview questions would be recorded contemporaneously as they are clearly relevant. On the journey to the Ministry, PC Green would maintain the log, noting who else was with the child and in what capacity. Every effort would be made not to engage Jimmy in conversation about his family or the incident. General conversation themes would then be recorded in short time blocks. If Jimmy made impromptu statements, they would be captured verbatim and time stamped. PC Lamb would read the notes and sign them as a true account.

This type of detailed record made by the officer seems a little extreme, but if documented in such a way, a court can determine the relevance of the statements and, more importantly, see that the officer made attempts to deflect the conversation away from the situation, to a point that the child did not talk about the events. According to the above notes, there can be little question that the officer did all they could not to coerce or lead the child while transporting him. They also did not influence his mindset towards the behaviour of the parents. Some officers across BC and Canada use similar forms, and some will use their notebooks. Either way, documentation is every important. Details that seem trivial at the time may be crucial at the final trial.

Many aspects of interviewing children are very important. There are numerous opinions and studies, but some consistent rules should be considered a necessity. These may include:

• Use simple language.
• Do not entice or encourage answers; ensure questions are not leading.
• Allow the child to use their own terminology to describe objects, places or parts of the body.
• Take careful notes.
• Use specialist interviewers where possible.
• Avoid positive reinforcement, e.g., “Good boy, go on” or negative reinforcement “Tell me or you are in trouble”.
• Make sure you understand their terminology.
• Simple strategies, like being on a physical level with the child, using open body language, and being engaging and non-judging, all help to make the process more comfortable.
• Special lounge suites with soft furnishing, or play areas, all help the child to feel less threatened by the process.
• The child’s boundaries and tiredness, rather than the investigator’s agenda, will define the time and focus. ’s

It is important that the child tell the truth. How do we ensure that the child understands the concept of truth, and the difference between the truth and a lie? A simple test can determine whether or not the child understands the word.

“Do you understand what truth is? Can you explain?”

(Allow the explanation)

“I am going to say some sentences. Can you tell me if they are truth or lies?“ You then make some statements that are clearly lies or truths, to establish the child’s comprehension.

“Your name is Jimmy, truth or lie?”

“I am wearing red shorts, truth or lie?”

“We rode in a big yellow bus today, truth or lie?”

Once a baseline of the child’s understanding is established, the interview is deemed to be more relevant.

Mental Health

According to the 2013 VPD report, Vancouver’s Mental Health Crises; An Update Report, there has been a steady increase in police interactions with people suffering from apparent mental health issues. Beyond 2013, British Columbia Emergency Services were stretched daily to attend calls related to drug overdoses due to the Fentanyl crises. Police in most agencies received extra training to identify signs of mental illness and to assist with often volatile incidents.

(Vancouver’s Mental Health Crisis: An Update Report September 13, 2013, Tim Szkopek-Szkopowski)

Inevitably, the necessity to arrest or interview people with mental illness grows. Interviewing people with mental health issues brings many pitfalls. Ultimately, we must be able to confirm that the person being interviewed comprehends the questions. If their sobriety or mental health is in question, the interview can be worthless to an investigation. Alarmingly, the VPD has stated that mentally ill persons are 15 times more likely to be a victim of crime, and 23 times more likely to be a victim of violent crime. This places a huge demand on police and support services, and limits their ability to take the necessary care and time, to record appropriate statements.

It is apparent that vulnerable persons such as children and those suffering with mental illness are more susceptible to making “false confessions”, often leading an investigator to falsely believe in their involvement. Interviewers must spend time explaining questions and ascertaining the interviewee’s level of comprehension. The ability of the interviewer to recognize the interviewee’s need for extra – maybe clinical – care, , or to seek further clarification of the interviewee’s comprehension levels, is valuable.

False confessions are particularly likely when the police interrogate particular types of suspects, including: suspects who are especially vulnerable as a result of their background, special characteristics,

or situation; suspects who have compliant personalities; and, in rare instances, suspects whose personalities make them prone to accept and believe police suggestions made during the course of the interrogation.

R vs. Oickle, 2000 SCC 38, paragraph 42.

Interviews with people who have taken drugs or alcohol, or people who are extremely fatigued, are also troublesome. Experienced interviewers will all have sat opposite a suspect or victim who is literally falling asleep, even after resting for many hours. Addictions and other ailments affect how the body reacts. Conducting an interview in situations complicated by conditions such as detention clocks for suspects will frustrate the investigator, particularly when timely retrieval of crucial evidence could save a life. There is strong advice to support interviewing only people who are of operating mind, but few suggestions as to how to define that term. The Supreme Court of Canada Case R V Whittle (1994) actually saw no real need to extend the term, “operating mind”.

Interviewers The operating mind test, therefore, requires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. Indeed it would be hard to imagine what an operating mind is if it does not possess this limited amount of cognitive ability…

… In determining the requisite capacity to make an active choice, the relevant test is: Did the accused possess an operating mind? It goes no further and no inquiry is necessary as to whether the accused is capable of making a good or wise choice or one that is in his or her interest.

(R. vs. Whittle, 1994 2 SCC 914, pg. 31)

When interviewing a suspect, victim or witness with apparent vulnerabilities, one can expect to be scrutinized by the court system. Simple adaption of technique, exploring clinical or medical examination or deferring the work to a more suitable time or location are options that will be questioned. It is not always easy to get antecedent information. Often suspects, or even witnesses, will not fully cooperate, will not answer personal questions, or will not or cannot provide simple information about their own lifestyle habits.  It is not always practical or even ethical to reach out to family members, or seek medical or psychological reports. Similar to interviews with youth, interviews with vulnerable people require a baseline of understanding:

“Are you okay?”

“Do you feel well enough to continue?”

“Are you under any medication or have you taken anything that may influence your behaviour?”

“Can you tell me where you are today? What day is it? Do you know the date?”

As frustrating it may be for an investigator, they must cover the basics. Even if they believe the person sitting opposite them is using their tiredness or apparent illness as a smoke screen to stall or avoid answering questions, the investigating officer must show due diligence to care of the person.

As we have seen, interviewing is an important tool and skill for evidence collection. It is also essential that it be conducted in an ethical and professional manner.

The author has followed the additional steps to achieve a Pure Version/Free Narrative Statement:

1. Mental Preparation
   The interviewer should be aware of the facts surrounding the case, the involvement of the witness, and the information regarding the case that the witness is expected to provide.
2. Physical Preparation
   The interviewer should have available any evidence that they may wish to show the witness, if it is required. The interviewer should also secure a private room that is appropriate for the interview, and check the recording device to ensure that it will operate properly. The investigator should have clean sheets of paper and a pen to make notes during the interview. Interviewers should consider having another interviewer in the interview room. This especially important, so that the other interviewer can raise other important questions.
3. Pre-amble
   An interviewer should take down the contact details of the witness before the audio or video recording starts. This process may also include some informal conversation to create a bond or foster rapport between the interviewer and the witness.
4. Interview Explanation
   An interviewer should start the interview with an explanation of the case about which the witness is being interviewed. The interviewer should also tell the witness that the interview is a statement from the witness, and that the witness will be given an opportunity to tell the interviewer everything without interruption. The interviewer should confirm that once the witness has completed the statement, the interviewer will then ask questions about parts of the statement that need to be clarified, or where some information may be missing, and more detail is required.
5. The First Direction
   Once the interviewer is reasonably certain that the witness is aware of the interview format and knows which case they are being interviewed about, the interviewer advises the witness to “remember that no detail is too small and that everything can be important, even the most minor detail”. The interviewer should then advise the witness to “start from the beginning”. If the witness asks, “where is the beginning?” or “would you like me start when I saw the suspect?” the interview’s response should be, “start from wherever you think the beginning is”. If the witness asks, “where do you want me finish?” or “when do you want me to stop talking?” the interviewer should respond, “wherever you think the end is”. This allows the witness to be in control, and dictate the beginning and end of their involvement.
6. The Pure Versions Statement
   During the Pure Versions Statement, the interviewer listens and simply records the questions that they may have to ask after the witness has completed their statement. The interviewer should appear to be engaged, and monitor their own body language to demonstrate that they are listening and empathetic. They should encourage the witness to talk by using their own body language, e.g., nodding their head. They should also observe and record the body language of the witness and what the witness was saying when they witnessed the body language. Interpreting body language cues is difficult and often inaccurate, however it is something that interviewers should be aware of and use to assess the feelings of the witness. Care must be taken not to put too much emphasis on body language.
7. Post Pure Version Statement
   When the witness has finished their statement and has made this clear to the interviewer, the interviewer should ask “is there anything else that you think I should know?” and “have you have left out any details that you think may be too small, or something that you think I may not be interested in?”.
8. Follow-up Questions
   Once the interviewer is sure that the Pure Version part of the statement is complete and the witness has exhausted their memory, the interviewer refers to their notes and asks questions that they have. The questions should expand on information provided by the witness or seek information that was omitted by the witness. Throughout the questioning, the interviewer should remain calm and neutral, without betraying any emotion that they may be feeling. The questions that the interviewer asks should be open-ended. If, after asking open-ended questions, the interviewer believes the witness may possess further information, the interviewer may decide to ask close-ended questions or questions that reveal information about the case. This is a series of questions that start out open-ended and cascade to questions that are increasingly close-ended, including more and more information from the interviewer. Interviewers who follow this practice must be aware that the credibility of the information they receive from the witness diminishes with each question. In a case where a man seen running from a crime had a tattoo on his face that was not mentioned by the witness, an interviewer may use a cascade such as:
   1. 1. “You mentioned a person that ran around the corner. Could you describe that person?”
      2. “Was the person a man or a woman?”
      3. “Could you describe his clothes?”
      4. “Could you describe his face?”
      5. “Was there anything that distinguished him from another man?”
      6. “Did you see a mark, scar or tattoo?”

   If the witness mentions the tattoo only after the last question, the interviewer must assess the information as being fed to the witness and not overly reliable. Should the witness provide detail about the tattoo that is corroborated by another witness, then the information would increase in credibility.

Simple rules of Pure Version Statements:

1. Ask the subject to start from the beginning……
2. The beginning is where THEY think the beginning is, not where you think the beginning is.
3. If they ask where to start, just say, “wherever you think the beginning is….”

During the Pure Version Statement:

1. Do not talk to the subject unless they ask something.
2. Do not tell them any facts.
3. Do not interrupt the subject while they are reciting or writing their pure version statement.
4. Allow for long breaks of silence; do not rush the subject.
5. If the Pure Version Statement is being recorded, make notes of questions you want to ask.
6. Be attentive and listen to what the subject is telling you.
7. If you have a partner, they can take the notes of the interview, for a quick reference.

When the subject stops talking:

1. Ask if there is anything else they think you should know.
2. If the statement is written, read it to develop questions. Write the questions and record the subject’s answers verbatim.
3. If the statement is electronically recorded, ask the questions while the equipment is still recording.

Recording statements

In a perfect world, all statements would be video recorded; this is the best evidence of an interview.  However, the reality is that at times interviews are conducted in remote areas or in exigent circumstances that preclude the ability to have the interview recorded on video. As such, there four types of witness interviews that can occur:

1. 1. Written statements
      These are statements that are formally written by the subject or the interviewer on a blank paper or on a digital document. The preference is that the subject write their own statements on a blank paper so that they are responsible for including the pertinent information from their perspective. From a blank paper, the investigator can see an uncleansed document that could have important corrections that might be helpful to the investigator, or indicate to the investigator how sure and confident that witness is. A digital document will not provide this information to the investigator. Written statements are always a good starting point for all non-suspect interviews, as they can provide the interviewer with great information before the in-person interview starts. The interviewer is able to read the statement and formulate questions to which they need answers, before the interview starts. The author believes that witnesses will at times write things they would never say, similar to the person who writes a nasty email, but would not say something nasty to another person’s face. Finally, statements written by the subject allow the subject to have more time to think rather than feeling pressured in a verbal statement. If the subject feels they have more control of their statement, they are more likely to provide a more honest account.In written statements, a blank piece of paper or a statement form provided by the interviewer’s agency should be used. The statement form should always contain the following information:
      • Who made the statement (“statement of_____”)
      • Who is present (“all present for the statement: ______”)
      • Where it occurred (“statement written at ________”)
      • The GO number (“General Occurrence Number_______”)
      • Date and time (statement written on_____at ____hrs”)

      All statements should be signed and dated by the subject and the interviewer, and initialed by the subject and the interviewer at the bottom of each page after the last word.

      

       

   2. Notebook statementsAlso known as field interviews, these are:
      • quick;
      • sometimes messy;
      • informal; and
      • not as credible as a recorded or written statement from the subject.

      These are interviews that are recorded in the interviewer’s notebook. Problems arise with these interviews because they are often regarded by the courts as inaccurate because they are not considered the best evidence. Also, the interviewer may have challenges keeping pace with what the interviewee is stating, will immediately edit for importance, and may inadvertently leave out critical information. The interviewer may also struggle with the actual mechanics of writing detailed notes, due to weather, poor penmanship or a poor pen.

   3. Audio Statements on a Portable Digital Recorder.
      These statements are fine for interviews where video is not available, or for statements of a lesser value.
   4. Video recorded statements at headquarters.
      These are the benchmark, and are considered by the courts to be the best interview.In the case were a video or audio-only statement is being conducted, the following rules are used:Use an agency-issued digital audio recorder or video recorder, so that there is software support. Each download should be transferred to a CD or DVD and treated as an exhibit. Each CD or DVD should be initialed and stored as per departmental policy.When starting a statement that is being recorded, the following information should be stated by the interviewer before the interview starts:
      1. where interview is taking place;
      2. the GO #;
      3. who is present; and
      4. the date and time.

      In order to protect the safety and privacy of the subject, it is important to exclude the subject’s personal information, such as the date of birth, the address or the phone number of the subject. If this is included, the information will have to be vetted from the recording and the transcript.

Memory and Statements

Memory is imperfect. We should all expect that memory is not absolute and that there will be gaps in memory, especially when a subject has witnessed something that is stressful or dangerous. We often think that memory is at its best immediately after the event has been witnessed, however, many witnesses recall things later on when something triggers something they have witnessed. An interviewer should also realize that during the course of an interview, the witness is likely to recall most of the events in chronological order, but at times may step out of this sequencing when they are triggered by something.

Memory may also function better days after an event has occurred, when the witness has been able to reflect upon the event after relaxing and feeling safe. It is also a good practice to help someone with their memory by taking them to visit the crime scene. This often helps them to recall things that they may not have recalled in a sterile room.  Care must be taken not to allow the witness to fill in gaps with information that they never witnessed. This must be done through open-ended questions at the end of the interview. Just as importantly, the investigator must take into account the mental trauma of returning to a crime scene, and be prepared to accept that the witness may not want to revisit the scene. If the witness does revisit the scene, it is important that the witness is provided support.

When interviewing a subject, interviewers should be aware that subjects use all their memories to recall information. A subject may talk about how it felt to be touched, or the smell of the suspect, and these sensory observations are often as important as visual observations. Many investigators believe that the veracity of a witness’s statement is enhanced if the senses other than sight are mentioned. There is little scientific evidence to support this, however the rationale is that the witness is likely telling the truth if they are using senses other than sight while accessing their memory.

Detecting Deception

“Meta-analysis focuses on non-verbal visual cues (eye blinks, eye contact, gaze aversion, head movements, nodding, smiles, adaptors, hand movements, illustrators, foot and leg movements, postural shifts.”

Lay people and professionals, for example, in cross-examination or in police interviews, pay attention to these aspects of demeanor to gauge whether a person is telling the truth or lying. Of these non-verbal behaviors, none showed a reliable association with deception across studies.