Chapter 10: Interviewing Financially Sophisticated Witnesses

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CHAPTER 10

Interviewing Financially Sophisticated Witnesses

Introduction

During the course of practically every case, it will become necessary for the investigator to sit down and interview a living, breathing person. Whether that person is an eyewitness, a records custodian, or, ideally, the suspect himself, you will embark on the task of attempting to elicit information using an interrogatory method of some type. Methods of questioning vary in complexity—depending on the subject and purpose of the interrogation—from simple question and answer to a veritable game of psychological survivor.

In this chapter, we hope to provide a framework that the financial crime investigator can use to successfully build an effective interview process. Like all good models, it must be adapted to differing scenarios. However, it can help the investigator navigate the often choppy waters of interpersonal communication that is unique to this setting. In addition, we will offer some valuable tips for approaching interviews with the financially sophisticated witnesses you are likely to encounter in a financial crime investigation.

This chapter is divided into three sections. The first introduces the fundamentals of the interview process such as whom to interview and why. The second section addresses the dynamics of the interview process, including such problems as witness memory and maximizing the interview environment, and briefly discusses the theory of cognitive interviewing techniques that are applicable to both suspect and nonsuspect interview modes. Finally, the third section provides the reader with financial crime–specific strategies for conducting successful and productive interviews in white-collar crime cases.

The Interview

What Is an Interview?

It has been said that an interview is essentially nothing more than a conversation with a purpose.1 Although true, this statement overlooks the fact that human dynamics intervene in the interview process to inhibit the parties’ attempts to successfully realize their purpose. Regardless of whether the interview is being conducted with a suspect or merely a witness, there are many psychological barriers to the efficient communication necessary to reach the interview's goal.

It is the investigator's job to eliminate these barriers or at least to minimize them, to the greatest extent possible, and to open a clear channel of communication. It is no longer acceptable simply to approach a witness, notepad in hand, and ask in a monotone, “Just the facts, Ma’am,” expecting the minutiae of observation to roll off the witness's tongue. Even the most cooperative witness generally will have difficulty remembering details to the degree expected by most police officers.

In innumerable instances, police investigators resort to questioning witnesses by using prehistoric methods that are more reminiscent of Adam 12 than modern police procedure, only to throw up their arms in disgust when the befuddled witness fails to respond with the appropriate reply. Is it any wonder that interviewing officers fail to obtain decent accounts of crimes and accurate descriptions of suspects during a seven-minute-long canvassing interview done with all the finesse of a bull moose?

Human memory is a complex and labyrinthine system. Concrete answers to questions about how we store and access information continue to elude science, despite extensive psychological studies. It is still largely unknown how the human brain matches discrete observed events with instantly recallable memories.2 This bewilderment as to memory accounts, in large part, for poor witness performance.

Beyond the psychological barriers, an interviewer must overcome social and environmental hurdles that impede the flow of information. Witnesses and victims often fail to provide candid interviews for a number of reasons. Some may not want to be involved in an adversarial process in which they eventually may need to testify against a neighbor, loved one, or other close acquaintance. Others may be reluctant because they themselves are hiding information to which they would rather the authorities remain oblivious. Yet others may be complicit in the crime—or perhaps they may fear reprisal from the suspect. There are as many reasons for reluctance as there are witnesses. Whatever the reason, however, interviews of both witnesses and suspects can be accurately characterized as a psychological tug-of-war.3

This does not mean that you should approach all interviews in a confrontational, accusatory manner under the assumption that the witness is hiding information or is intent on being uncooperative. Instead, you should be cognizant of the dynamics of human behavior and proceed in a nonconfrontational way with the underlying recognition that natural barriers to a totally forthright exchange do exist.

As an investigator, it is ultimately your responsibility to break through these barriers and distill all the superfluous information down into a set of facts that can be used to prove or disprove the case.

Unfortunately, in addition to these natural barriers to a free flow of information, the financial crime investigator must confront another barrier—language. When interviewing a financially savvy witness, the witness is naturally going to speak in terms that are familiar to him. Often these terms define concepts that have both unique and unfamiliar meaning to people who are not proficient in the financial arena. In an ordinary conversation, the listener can merely edit out the data that are uninteresting or not understood, and continue the conversation with a moderate level of comprehension. Investigators, however, do not have that luxury. The data they edit out or misunderstand could be the key element in understanding the entire case. In order to help reduce these barriers and increase the level of communication, it is important to plan the interview in advance.

Planning the Interview

WHO?

Determining the interviewee—without this stage the interview will not take place. In the context of investigational interviewing, in contrast to scientific or research interviewing, these choices are usually fairly obvious. However, because financial crimes often involve witnesses and evidence that are not routinely encountered in other, nonfinancial crimes, a brief discussion is in order.

In preparing a list of potential interview subjects, the investigator should keep in mind that there are relatively few eyewitnesses in financial crimes. There are two reasons for this. First, the overwhelming number of financial crimes is based on one variety of fraud or another. By definition, fraud is a surreptitious crime involving concealment and stealth. In contrast, non-financial crimes often involve an affront to a specific individual. Murder, robbery, assault, and even burglary—when unsuccessful—involve witnesses who theoretically can provide a description of the suspect and a more or less detailed account of what happened. The secrecy with which fraudsters ply their trade is designed to avoid eyewitness accounts.

Second, to the extent that a person may witness a discrete act by the suspect, they likely will regard the person's actions as falling within the bounds of routine business activity. The problem of a witness's inability to identify aberrant behavior stems from the fact that successful embezzlers attempt to mimic as closely as possible the patterns and activities of legitimate business. When they are successful, their activities are often indistinguishable from routine daily operations—even to a well-trained observer. For those reasons, the list of interview candidates should include a much wider range of potential information-holders.

Although a witness who actually can place the CFO's hand in the proverbial cookie jar is ideal, it is much more likely that the investigator will have to reconstruct that visual image using circumstantial documentary evidence. In this case, people with very little or no direct contact with the suspect may provide some of the most powerful and damning evidence—exactly who these people are, and what their role within the investigation is, will vary widely from investigation to investigation and by type of crime. However, you should never overlook such potential witnesses as external auditors, accountants, banking personnel (including tellers and branch managers), mortgage and loan brokers, and business consultants. In short, any individual or firm that may have information about how the business is running, or should be running, is a potential source of information. This fact holds true regardless of the nearness of the witness to the suspect or his business. It should not be necessary at this point to present a laundry list of potential witnesses; it should be sufficient to remind the reader to use both creativity and logic when selecting candidates to be interviewed.

As you prepare your list of potential interviewees, always include both currents and formers. There are few investigators who would forget to interview current employees, co-workers, and intimates of the suspect. However, it is the true professional who also remembers to include in the list of potential candidates the formers as well. Aside from providing greater depth to the investigation, former bosses, co-workers, and significant others often can provide very detailed information without fear of ruining their relationship with your suspect.

A warning about interviewing formers: As you begin to interview former associates and acquaintances of your suspect, keep in mind that formers often have animosity and may have an axe to grind with your suspect, and as a result might tend to either embellish, or worse, fabricate information that they think you want to hear. While currents can be just as deceptive, often for different reasons, you should naturally seek some corroboration of negative statements about your suspect from formers. Some interviewees to consider:

Victims
Co-workers, including bosses and subordinates
Suppliers and vendors
Customers
Spouses (and former spouses)
Significant others
Relatives
Attorneys (depending on attorney–client privilege and work-product doctrines)
Accountants
Bankers and stockbrokers
Regulators, including the SEC, if applicable, and other industry watchdogs
Competitors
Industry leaders and group representatives

WHAT?

Once you have determined whom you are going to interview, you must think about what he or she is likely to know. Even though figuring out whom to interview, and what the individual is likely to know, is a reflexive process, you should give considerable thought to what information the witness is likely to be able to provide you with. Most investigators, especially those who are new to financial crime investigation, think about witnesses’ knowledge in terms of actual observation of the act in question. While that would be great, as mentioned earlier, the nature of financial crimes makes that unlikely. Instead, you must condition yourself to think in terms of other areas of your case in which the witness might be able to fill in gaps.

Some witnesses who are far removed from the actual crime might have the best information. While the banker and the stockbroker may not have access to the smoking gun you need to prove the CFO tinkered with the accounts receivable, they may have even more valuable information in regard to where the money went. We have mentioned several times the value of following the money. Most financial criminals will put that money somewhere, and who better to know where than the suspect's local banker. Even with the stringent restrictions on financial information disclosure imposed on financial institutions, there are often pieces of information that you can gather that will help you track down sources of funds, expenditures of funds, or even motives for the theft.

Thinking about the what in advance helps you organize your interview. When you are dealing with witnesses who have access to collateral financial information, you cannot shoot from the hip unless you want to risk causing yourself more work—and probably requiring re-interviews of the same witnesses. When you understand what potential documents the witness may have access to, and what information he or she may be able to supply, you can prepare probing follow-up questions and obtain things such as subpoenas or other legal process in advance. If you embark on the interview without thinking about the what, you may have to terminate the interview, get the subpoena, and then reschedule—in today's busy world few witnesses will appreciate this added inconvenience.

WHY?

Why is also closely integrated with both who and what. Figuring out why you need to interview this particular witness is closely related to who the individual is and what information he or she is likely to have. In fact, by figuring out what the individual is likely to offer your case, you can answer the question of why he or she is important.

Part of the why must include why now? In deciding why the witness must be interviewed, consider the order in which you are moving through the list. Interviews with some witnesses are more valuable for background information, or during your intelligence-gathering phase, while others will be important in nailing down the fine points. Accountants, bankers, and stockbrokers might give you a big-picture perspective, while the accounts payable clerk might be able to actually reveal details of individual transactions. Both vantage points are equally necessary, but not always in the same order.

WHEN?

Figuring out when to interview a subject involves more than just figuring out in what order you will conduct your interviews. As we mentioned previously, timing is a planning concern for all witnesses. However, in addition, you must consider when you should interview a subject in relation to things such as time of day.

When is the perfect time to interview? The answer is: never. But sometimes are clearly better than others. Consider the CFO who is preparing for a presentation to the board of directors. Clearly, his schedule will be very tight indeed. Likewise, a stockbroker or banker can be expected to be relatively flexible during certain times of the day and week. Accountants, however, are all but sequestered between the months of December and May, for obvious reasons.

When you recognize and give some thought to what particular times are most hectic, and consequently the worst times to schedule interviews, you can help create a more amicable atmosphere with your witness. Professionals are used to squeezing in a working lunch or taking a last-minute meeting when the bottom line may improve. They most likely will view sitting still to answer a raft of questions about John Doe's financial dalliances a waste of valuable time—theirs and the company’s. Their impatience will translate into a poor atmosphere for information gathering. If you do your best to work around your witness's schedule, within reason, you will minimize this effect as much as you can. What is the best time? Simply ask.

WHERE?

Where you conduct your interview is also important. You have several options when deciding where you want to conduct the interview. You can use your witness's place of business, his office, his home, your office, or some neutral forum. Whichever you decide, each will have pros and cons.

Home-field advantage might be important. Additionally, the role that the witness played in the crime may influence how comfortable you want him to feel. Ancillary witnesses such as nonparty bankers, brokers, and professionals likely will be most comfortable in their office or in a neutral forum. Suspects and those who might become suspects likely will be most comfortable on their turf as well. However, strategically, you may not want the suspect/potential suspect to be too comfortable.

The proper setting can help to leverage the psychological pressure. It is common for investigators to manipulate the pressure placed on a suspect in order to reduce his resistance to confession. While some might argue against this practice, it is commonly done and, when not abused, can be quite effective. One very powerful tool to manipulate the pressure is taking the suspect out of his element and putting him into yours. Whether it is your office, a police precinct, or an attorney's office, the pressure placed on the witness is likely to be greater.

HOW?

Finally, you must consider how you are going to conduct the interview. In terms of logistics there are several options at your disposal. You can audiotape it, videotape it, have it stenographically recorded, or take notes and memoralize the interview later. All options are quite acceptable. Recording protects the investigator. There is no room for he said/she said when an accurate recording of the interview exists. Accusations that you made threats or offered promises to entice a suspect to confess are much easier to disprove when review of the tape shows otherwise.

Between audio- and videorecording, video is usually preferable. Even though an audiotape captures the identical audio information that a videotape does, the ability to watch both the investigator's and suspect’s/witness's expression and body language can dispel any implication that the interview environment was overly coercive or intimidating. The adage, “It's not what you said, but how you said it,” offers testimony to the fact that nonverbal communication is a very powerful tool. Your proximity to the suspect and the physical barriers, or lack of them, between you and the suspect are all points of particular importance to defense attorneys arguing against the voluntariness of a statement. Likewise, a dropped book, palm slammed on the table, and other loud noises sound oddly like coercive beating when unaccompanied by the video image.

Recording also protects the witness. With an accurate recording there is no question of what was said. This can be important to the witness because it gives her some comfort that you will not twist his words into something they are not. When confronted with a witness who balks at the thought of “going on tape,” explaining the value of a tape from his point of view is often enough to overcome his hesitation.

Finally, recordings don't forget. Even though tape recordings can get misplaced, destroyed, or in rare cases altered, they are generally much more resilient than the average investigator's memory. When cases pile up, and dozens of witnesses’ statements run into one another, there is no better memory clarifier than the actual tape of the interview. When the time comes for report writing and trial preparation, reviewing interview tapes will greatly enhance your recollection of critical details and lower the possibility that you will mistakenly include or exclude some pertinent detail.

However, there are occasions when recording an interview may have negative consequences. One of the primary objectives of the interview process is to get the subject talking. The presence of a recording device may cause the subject to be less willing to speak freely. Additionally, inquiries involving public agencies are usually subject to Freedom of Information mandates and may be released to the media and general public. An inflection in tone or spontaneous exclamation in response to a sensitive question may be embarrassing later and taken out of context. As an alternative to recording, a two-person interview can be conducted of the subject to avoid later conflicts in memory. Once notes are transcribed and memoralized, the report of interview can be reviewed by the subject to validate and clarify any discrepancies or inconsistencies. Depending on the parties involved and the circumstances of the case, the investigator should use the most effective and efficient technique.

Another consideration is the tone of the interview. As we suggested earlier, there will be different goals with different interviews. You most likely will conduct suspect interviews and witness interviews differently. Psychological pressure and demeanor are both characteristics that will vary depending on the type of interview you are conducting. Along with the psychological aspect of the interview, you will adopt a different tone. By deciding in advance how you wish to approach the witness, you can have a better understanding of how best to capitalize on the psychological pressure of the situation.

Now that we have offered some tips on planning the interview, it is time to move into the interview proper.

The Interview Process

Traditionally, interviews have been categorized as either suspect or witness.4 Often these interviews are distinguished from each other by use of the terms “interview” and “interrogation,” with interview signifying nonsuspect, and interrogation signifying suspect. Suspect interviews, are exactly as they sound—interviews with a person or persons who are suspected of committing some misdeed. Witness interviews are slightly different. The term witness interview encompasses witnesses, victims, and other people who are not immediately suspected of committing a misdeed. The reader should note the use of the word “immediately” in the preceding sentence. Much as a homicide investigator is trained to approach every death investigation with the assumption that there has been foul play, every interview should be conducted with the subliminal notion that every witness may, at some point, mutate into a suspect. We don't mean to instill in the reader an “everyone is guilty” mentality; in fact, studies have shown that such bias leads to false determinations of deception.5 We simply recommend that the financial crime investigator maintain a healthy level of professional skepticism. This attitude can prove invaluable when the comptroller, once believed to be nothing more than a reporting party, becomes ensnared in a web of his own deceit. If you approach every interview from a position of professional skepticism, it is much more likely you will avoid hasty supposition and incorrect assumptions—the bane of any good investigation.

Interviews are conducted for myriad reasons—scientific, psychological, journalistic, or investigative. But regardless of the purpose, certain dynamics exist between the interviewer and the respondent.

As stated earlier, the interview has been defined as a conversation with a purpose. This purpose, regardless of the reason for the interview, is to elicit information.6 The process of eliciting this information requires verbal interaction. This interaction necessarily entails discourse. Discourse in turn is the exchange of a commodity. In the case of the interview, this commodity is language.

People exchange words to communicate. Communication is possible because words have shared meaning. However, words—components of the language—have culturally dependent value. This value, unique within the culture, signifies a specific meaning to members of that culture. The culture in this case is the financially astute community. The CPA, comptroller, bookkeeper, or chief financial officer all speak a very unique dialect within their native language.

The interview may take many different forms, from open-ended to focused and predetermined.7 The most common form in the investigational setting is the semistructured interview. This format allows the interviewer, guided by a set of basic questions and goals, to explore the issues as they arise within the broader context of the structure of the interview.

Conducting the Interview

For many years, police interviewers were trained, when trained at all, in a classic, question-and-answer style of witness interviewing. This procedure consisted of an interviewer-controlled session of closed-ended questions often requiring “yes” or “no” answers. The interviewer, in this case the police officer, asked the witness a series of pointed questions designed to elicit a specific factual response relating directly to a relevant fact in the investigation. “What color was the suspect's hair?” “Did he have a gun?” “What was the license plate number?” These are all questions one would reasonably expect to hear in a classic police interview scenario.8

Often these questions resulted in inaccurate answers or an inability of the witness to recall the details of the event. Unfortunately, after such an exchange, the witness was left feeling unhelpful, and the investigator was left feeling appalled at the witness's poor observational skills. What is more disheartening is that the officer was left with little hope of developing further investigative leads based on the witness's observations. Any information the witness was able to give was likely to be only marginally accurate.

Fortunately, advances have been made in the study of cognitive behavior and applied psychology.9 These advances, relating to the manner in which humans store and retrieve information, have direct correlation to how witnesses store and recall observed events. One of the most promising advances in this area is the development of a memory facilitation technique known as the cognitive interview.10

THE COGNITIVE INTERVIEW

In 1984, Dr. R. Edward Geiselman, a professor of psychology at UCLA; his associate, Dr. Ronald P. Fisher; and several colleagues developed the theory behind cognitive interviewing. This new approach to questioning provided a breakthrough in interview technique and was based in part on a concept known at the time as the structured interview (SI). The cognitive interview expanded the SI paradigm and added a number of strategies designed to enhance the efficiency of witness recall.11

The strategies that underpin the cognitive interview have several theoretical bases. First, it is hypothesized that remembered (referred to as encoded) information is stored in “records” or discrete units containing event-relevant data. These records are indexed by headings and may be searched using descriptions until the matching record is found. It is believed that information about context, the environment in which the event was recorded, is part of this descriptive information. The reinstatement of the context, or re-creation of the environment, therefore aids the individual in accessing the descriptive information and the record.12

Second, it is theorized alternatively that, instead of discrete units, our memories comprise a network of associations. As a result, it is possible to access the memories from several different places. For instance, it may be possible to trigger recall of an event by shifting the temporal perspective, such as starting in the middle or end of the event and regressing.13

The last model incorporated into the cognitive interview process is known as the schema theory. This theory holds that familiar events have a script that guides how they are encoded in our brain. If we observe a familiar event, that event is organized into a hierarchy of slots according to this script. New events are stored in slots based on the familiar slots already scripted by the brain. This allows the brain to encode information based on prior expectations and to fill in slots with default information.14

The cognitive interview is essentially a systemized approach to exploiting these models of information encoding and retrieval in order to enhance witness recall of event information. Although it has its detractors, the cognitive interview has met with statistical success and has been shown in several studies to increase correctly recalled details by as much as 45 percent over noncognitive interview formats.15

Procedurally, the cognitive interview is a multiphase approach incorporating communication facilitation techniques. Phase one consists of free report; phase two is questioning; and phase three is known as second retrieval. Within this procedural context, the interviewer utilizes memory recall techniques that are consistent with the cognitive approach.16

During phase one, it is crucial that the interviewer emotionally transfer control of the interview to the witness. In this reporting phase, the witness is encouraged to do the majority of the talking. This may be accomplished by the use of open-ended questions that allow the witness to dictate the pace of the interview. At this point, it is important that the interviewer avoid interrupting the witness's narrative by timing his comments and any necessary questions carefully.

During phase two, the interviewer can begin basic questioning based on the witness's free-report recollection of the event. This form of questioning differs substantially from the standard police interview in which the interviewer approaches the interview with a specific, script-like list of questions designed to fill in the blanks on the report. Although some structure is desirable and necessary to ensure that the who, what, where, why, when, and how are covered, the bulk of this phase should be determined on the fly as the witness recreates the event in her own narrative.

Finally, in phase three, once the interviewer's basic questions have been covered, the witness is directed to make a second attempt to retrieve the information she could not recall during the initial free report.17

While proceeding through all three phases of this model, the interviewer should employ several cognitive techniques that will help to jog the witness's memory. By encouraging the witness to re-create the scene in her mind, visually picturing the event, you are helping her to recreate the context. This retrieval-enhancement cue conforms to the first model of memory encoding; it helps to increase the overlap between the event and the recall context, and it also may help the witness to recall hidden details of the event or episode.18

Once the witness has re-created the scene, question her about specific aspects of the image. You can ask her to describe specific details of the room, persons in the room, or physical sensations she feels. By probing the image for details, you may elicit further recalled images. At this stage, you should encourage the witness to report even partial information, regardless of how unimportant she perceives it to be. This may be effective both because the witness misperceives the importance of the information and because the act of remembering the seemingly inconsequential details triggers further recall.19

While guiding the witness through this recall process, explore other memory access routes. This technique exploits the multiple trace and schema models of memory retrieval and requires the witness to approach the event from an alternative perspective. Consider guiding the witness to rearrange the event temporally. For example, ask the witness to recall the event from the middle or some other nonchronological point. The reader should note that some research indicates that accessing the event in strict reverse-chronological order may be counterproductive with the context reconstruction technique. It is theorized that this is the case because the context reconstruction technique encourages the witness to re-create an exact image of the event in her head visually and temporally. By instructing the witness to access the memory in reverse-chronological order, the benefits of context reconstruction may be lost.20

As successful as these techniques may be, you should be aware that there is the increased possibility of error in recall.21 It is inevitable that any technique that increases the amount of information recalled also will necessarily increase the number of errors in recollection. This is true of any interview technique that is designed to enhance a witness's ability to remember. It is the interviewer's responsibility, then, to lessen the impact of this phenomenon.22

One way to do this is to use this technique only as an investigative tool. As with any evidence developed during an investigation, the investigator must make every effort to develop additional corroborating evidence. In the context of financial crime, corroboration most likely can be effected through the use of documentary evidence.

While discussing the topic of recall error, you should note that two types of error are generally associated with memory recall: errors in recall and confabulations. Errors in recall—simply called errors—are mistakes of fact about something that actually occurred. For example, if a witness reported that the vehicle was blue when in reality it was brown, it would be termed an error.

Conversely, a confabulation is an instance where the witness constructed a memory that did not exist in the first place. An example would be that of the witness who reported that the suspect carried a gun when in reality he did not. Confabulations often are seen, or suspected, in cases of repressed childhood sexual abuse reports. It is interesting to note that the research appears to indicate that cognitive interview techniques may increase errors as opposed to confabulations.

Research also has shown that the use of the cognitive interview on children under the age of eight may produce a higher rate of error.23 In the context of financial crime investigation, the frequency of witnesses in that category providing relevant details in a case is small. However, as with any investigative technique, investigators should be aware of its potential for misapplication and govern themselves appropriately.

As we stated earlier, the most effective interview strategy is the combination of the cognitive interview and the use of communication facilitation techniques. To a large degree, the free-report phase of this three-phase process is a communication facilitation technique. Because it transfers control to the witness, it empowers the witness and encourages her to participate in the process. More importantly, it begins to establish rapport.

Although often viewed as nothing more than idle “chit chat,” or a luxurious nicety, preliminary questioning can be the key to building rapport and getting everything you need from a witness.

Often an interviewer's job can be likened to that of a clinical psychologist where an intimate bond first must be developed before intimate secrets can be shared. In the case of the interview, those intimate secrets might be just the details of the criminal enterprise you are seeking to uncover. Once the interviewer establishes rapport, barriers disappear, trust grows, and a free exchange of information follows.

During the rapport-building phase of the interview, the interviewer must build trust between himself and the witness. During this phase, two things must happen: (1) the interviewer must assess both the verbal and nonverbal cues to a witness's behavior patterns; and (2) the witness must become familiar with the investigator and develop a comfort level on which to build the tone of the conversation.24 Often this may be accomplished through application of techniques from a communications model known as NeuroLinguistic Programming (NLP).

NEUROLINGUISTIC PROGRAMMING

NeuroLinguistic Programming (NLP) is a communications model that was developed by John Grinder, an assistant professor of linguistics at the University of California at Santa Cruz, and Richard Bandler, a student of psychology, in the early 1970s.25 The technique is premised on the idea that all communication originates from the processes of seeing, hearing, tasting, feeling, and smelling. Our experiences are filtered through our sensory perceptions. However, because human beings are essentially verbal communicators, we must translate our thoughts and ideas into language—that is where linguistics enters the equation.26

According to Grinder and Bandler, each person uniquely decides how to organize ideas internally in order to access them and produce results. The main premise of NLP, therefore, is that people use their senses to perceive the world. In essence, people can be classified as visual (seeing), auditory (hearing), or kinesthetic (feeling),27 and, to a lesser degree, gustatory (tasting) and olfactory (smelling), based on how they perceive, store, and reaccess their thoughts and memories. Therefore, when people communicate, they access their thoughts by mentally accessing the sights, sounds, or feelings—and to a lesser degree tastes and smells— associated with the experience or memory. This is their representational system.28

We advocate the study and use of NLP models for building rapport and maintaining a productive informational flow during your interviews. By utilizing the information provided by NLP, an investigator can successfully create an environment where the witness or suspect feels much more inclined to speak freely.

The most effective approach to building rapport with an interviewee occurs on three levels: the kinesic, the language, and the paralanguage. The kinesic, perhaps the most obvious level, involves the mirroring of the person's body language. The language technique involves using words with bases in similar representational systems, and the paralanguage involves the mimicking of the interviewee's speech patterns.

Kinesic Mirroring

A person's kinesic29 behavior includes things such as gestures; body posture; leg, hand, and arm position; and other subtle body movements. When an interviewer adopts similar body positions and subtly mirrors the interviewee's movements, a greater chance for rapport is realized.30

Please note the use of the term “subtle.” This technique, although quite powerful as a rapport-building tool, can, when overdone, lead to offense—exactly the opposite of the desired effect. There is a difference between matching a person's body language and mimicry. Matching involves very subtle adoption over a period of time. The process must be used cautiously and developed slowly. Otherwise, all hopes of good rapport between the investigator and the subject are lost.

In kinesic mirroring, less is more. Small gestures, such as adopting a similar rate and depth of breathing pattern, and adopting a similar posture, head position, hand position, or seating arrangement all have a strong influence on the witness's subconscious defense system. Over time, like partners in an elaborate dance, the interviewer and interviewee will respond to each other's movements in unison. This mirroring of actions lays the foundation for building strong rapport and an ideal interview environment.

Language Matching

People use language to communicate. They relate their thoughts and experiences through the veil of their individual sensory perceptions. This is the foundation of the entire structure of the NLP model. Language matching utilizes the knowledge that people's words provide in order to establish a subconscious connection.31

Language matching is not, however, simply the use of the same words the interviewee uses. Although it often may involve using similar words, the theory is not meant to convey a notion that the interviewer is supposed to use street language if he is dealing with a person of that demographic. In fact, much like mimicry, if the investigator's use of slang terms and words is incongruous with her background, it likely will be interpreted as a mocking gesture—another definite killer of rapport.

Instead, language matching looks deeper into the theory of linguistic communication to the sensory processing that people undertake when storing memories. As we indicated earlier, people process information through a sensory filter: visual, auditory, kinesthetic, gustatory, and olfactory. It is this sensory filter that dictates the language people select in order to communicate. Visual people will communicate visually; kinesthetic people will communicate kinesthetically, and so on.32

These tendencies to communicate through the veil of sensory processing often exhibit themselves in subtle ways. For example, a person whose predominant representational system is auditory will speak in terms of auditory sensation. “I hear what you are saying,” “that rings true,” or “that sounds about right to me,” are all examples of phrasings an auditory person may use.33

Visual people, on the other hand, speak in terms of sight. “Do you see what I mean?” “I can't see my way clear to speak to you now.” Or “I get the picture,” are probably much more likely to be used by visually centered people. Similar linguistic patterns are found in people centered in other processing paradigms.

In terms of rapport building, these linguistic cues into the person's representational system can be adopted. Respond to the interviewee's comments or questions with similarly centered answers. Phrase your questions in a way that the interviewee can relate to representationally. At first, this technique may be difficult. If you, as an interviewer, are predominantly an auditory person attempting to interview a visually representational person, you may have to carefully rephrase your questions in a visually centered form. It will take practice. Given the value of information to most investigations, however, the rewards are well worth it.34

In conjunction with the subject's choice of words, NLP provides other, nonlinguistic cues to a person's representational orientation. According to Grinder and Bandler, eye movements, referred to in NLP parlance as “eye-accessing cues,” reflect a processing orientation. It follows from this tenet that people's eyes move to specific spatial areas when accessing information, dependent on their preferred mode of representation.35

These visual cues can be the key to unlocking the subject's method of accessing information For example, people typically move their eyes up at an angle when remembering pictures; they typically look to the side when recalling past sounds; and they look down at an angle when recalling kinesthetic, or felt, sensations.

If your subject consistently looks up and to the left when accessing information, he is “seeing” a picture. If the witness is looking down and to the right, he is probably accessing information in a kinesthetic manner. Similarly, if he looks consistently to the side, he is probably an auditorily oriented thinker. These cues to the subject's preferred representational system can be used to the interviewer's benefit.36

When you ask questions of a subject who is visually oriented, attempt to stimulate the witness's visual recall by asking questions in that format. Ask for information based on how things appeared to the witness, how the scene looked, how the defendant appeared, or how things appear in her mind. By asking the witness to access the information in a manner that is internally consistent with her representational system, there is a much greater likelihood that her recall will be fruitful.37

Similarly, by asking a visually centered subject to recall things based on an auditory representational system, you are asking the witness to remember in a way that is both foreign and uncomfortable. That is not to say that a witness who is auditory cannot recall visual images. It simply means that by speaking with a witness in her “native language,” you are more likely to build rapport with her.

Claims have been made that interviewers can act as “human lie detectors” based on an advanced application of NLP. This technique often has been taught in kinesic interviewing seminars. However, it is widely disputed as a technique for detecting deception, and significant research has shown that factors other than deception often influence a subject's method of accessing information.38

The principle of this technique is based on an NLP model constructed in the late 1970s, which postulated that people access remembered and “constructed” (false) information from different spatial areas. For example, it is believed that a constructed cue is accessed with a rightward eye movement. Regardless of whether constructed cues are accessed in this manner, and whether this NLP model is predictably accurate regarding the spatial relationship of constructed cues, there are other difficulties associated with using this communications model as a predictor of deception.

People construct mental images and sounds for many reasons. For example, Grinder and Bandler explain that many people reconstruct their memories. This reconstruction, then, would show a “construct” eye-accessing cue, even though the related information was factual and not fabricated. When dealing with such critical matters as truth and deception correlating directly to guilt and innocence, this margin of error, in our opinion, is too great. There are much better nonverbal cues to deception that are more easily calibrated by the layperson. Therefore, we believe that this use of NLP is unreliable.39

Paralanguage Matching

Paralanguage refers to vocal effects, such as rate, tone, and volume, that accompany or modify human speech patterns and often communicate subtle meaning. Although an investigator should be cognizant of changes in volume, tone, or inflection in a witness's voice, paralanguage matching goes beyond mere observation.

Paralanguage matching requires the interviewer to adopt speech patterns similar to those of the witness. If a witness speaks slowly in a low volume, an investigator should attempt to adopt a similarly slow and low pattern of speech. In this way, the investigator and the witness are allowed to get in “sync.” This mirroring technique does not have to be an exact match. To be effective, however, it should closely resemble the speaker's cadence and volume. When done properly, it is perhaps the most powerful rapport-building technique available to the investigator.40

Ending the Interview: Bringing Closure to the Interview

Once you are confident that no further information will be developed during that interview, you should continue the rapport building by ensuring that the witness feels like a stakeholder in the process and you should signify that the interview is being concluded.

When bringing the interview to a close, it is important to assure the witness that if she recalls anything else, she should feel free to contact you and relay the information.

In addition, it is important to establish that you may wish to speak to the witness again at a later time for further questioning. Clearly explain that this occurs frequently as new information surfaces and as various other witnesses provide their account of the incident. You should reassure the witness that this happens all the time and is simply a matter of routine.

By closing the interview in this rapport mode, you likely will have a much easier time if you actually do need to reinterview that particular witness. Once the interview is closed, it is imperative to accurately document in your report the content of the witness's statement.

Interviewing Financially Sophisticated Witnesses

Although there is no methodological difference when interviewing a financially savvy witness, a language barrier is an added aspect of such an interview. Hopefully, you have carefully read the first section of this book and feel comfortable in your knowledge of the basic concepts of the accounting equation. If not, feel free to do so now. Understanding the language and reasoning used by accountants and other financial professionals will substantially reduce the communications barrier. Once this barrier is lessened, the interview becomes a matter of attention to details. The greatest difference between conducting an interview in the case of financial crimes compared with other crimes, in our opinion, is the need for preparation. In the case of other crimes, for example, murder, complication is seldom involved. Often, it is a smoking gun homicide, and you are questioning witnesses about personal observations.

Financial crimes are quite different. Many times complex corporate structures, nominee owners, and offshore transactions are involved that tend to blur or completely obliterate true ownership. There are complex financial transactions that, although perfectly legal, seem somehow illegitimate. Financial crime interviews are all about the details—unfortunately, as the saying goes, the devil is in the details. Because these types of witnesses often will recount complicated transactions, simple yes-and-no questioning or “tell me what happened” open-ended questions will yield nothing. Therefore, preparation is of paramount importance.

When interviewing witnesses in financial crimes, the most critical time is before the interview even begins. Sometimes, the opportunity to interview a particular witness will present itself only once. This may be true in the case of a witness who later becomes a suspect; or, perhaps, the witness unfortunately passes away before the case can be completed. Because you may get only one shot, it is imperative that you plan carefully before you step into the interview room.

Use the background developed during the preliminary stages of the investigation. Begin by carefully studying the business operation that is the subject of the investigation (for more detail, see Chapter 9). By understanding the day-to-day operations of the firm and knowing the normal flow of funds, you will be prepared to recognize answers that provide either keys to new lines of questioning or perhaps cues that the witness may be withholding information. It is important to understand the normal flow of funds within the firm. This is why you don't rush into interviewing the financially savvy witnesses first.

Know the specific language that your financial witness speaks (accounting-ese, SEC-speak, etc.). When preparing for the interview, conduct research on similar enterprises within that industry. For example, if you are preparing to interview the comptroller for a medium-sized, import-export firm, know what a similar firm looks like. What sort of yearly revenue can you expect to see? Regardless of the industry, there are likely several journals and trade organizations that can provide detailed information about standard operating procedures and financial ratios within the industry. Often, a simple telephone call or Internet visit will yield enough information to keep you busy for several days.

Examining industry-specific information and making detailed notes allows you to assess the validity of the answers to your interview questions. For example, if the industry average for bad debt write-offs is one percent of gross sales, a figure wildly over that should signal that further inquiry should be made into accounts receivable.

Collect the documents that your witness likely will testify about. Nothing is worse than trying to understand a complicated trail of transactions at the same time you are trying to formulate a new question. If possible, request that the witness provide, in advance, copies of any documents that he will be referring to in his interview. This allows you time to study the documents and make detailed notes concerning what questions you wish to ask. Too often, an investigator examines the financial documents while also attempting to interview the witness. This poses two problems. First, because you are unfamiliar with the documents, you may not notice inconsistencies. Second, if you divide your attention between formulating your next question and examining a complex document, neither task receives its requisite attention. In short, do not force yourself to make up questions on the fly.

Stack the deck. Interview witnesses with general information first and those with specific information last. This way, you are learning more each time you interview and are going from general to specific. For example, the comptroller has a great deal of knowledge regarding the overall operations of the business. However, it is unlikely, at least in a large operation, that he would be able to easily answer specific questions about any particular account within the company's receivables department. By interviewing this person first, you can often obtain a much broader picture of the operation, which may help you formalize a more specific tactical approach to the remainder of the investigation. Obviously, if you suspect the comptroller or other high-ranking financial officer of being complicit, you may wish to use an alternative strategy.

Build your knowledge as you go. By starting at the top and working your way down, you will be increasing your knowledge base about the business while you are narrowing the focus of your questions until you have reached the point where specific pointed questions will elicit the detailed evidence necessary.

Prepare an interview outline in advance. As we cautioned with witnesses in general, the best defense against the natural tendency to leave out questions is to make a general outline in advance. This is even more important when interviewing financially sophisticated witnesses because they most likely will be talking over your head. By formulating a list of general questions and planning out the interview in advance, you are much more likely to cover everything you need and stay on track.

Don't be afraid to take documents or visual aids into the interview room. Allow your witness to take you step by step through the process or flow of funds. Make him do it slowly, and several times if necessary. It is imperative that you understand the process, flow, or procedure you are interviewing the witness about. It might help to summarize the information. When time allows, you should create a summary, even if it's just a brief handwritten synopsis, of the financial information the witness will be expected to know based on your examination of the documents.

Draw a flowchart of funds, transactions, or deposits. Visual aids can be an indispensable part of your brainstorming session. If you can understand the information well enough to create a one-page summary or chart, you likely will have a strong enough grasp of the financial picture to thoroughly question the witness. In addition, if you have a chart or summary of the information with you while conducting the interview, staying on track is much easier—simply follow the summary.

Do not be afraid to ask the witness to look at your flowchart or diagram. Have the witness tell you exactly where you are mistaken. Let him make the corrections. Or ask the witness to draw a chart of his own. By following along visually as the witness explains the flow of transactions, what once was blurred in your mind may become clear.

Finally, be prepared to enlist help. Although you will have a much better handle on most financial crimes after reading this book, you invariably will run across scenarios that put you out of your league. Hopefully, these will be few and far between—and fewer as you expand your experience. They are inevitable, nonetheless. When an unfamiliar scenario arises, set aside your pride and seek the assistance of an expert in that particular field. Whether you spend an hour trying to absorb as much information as possible, or you enlist experts’ help in preparing your pre-interview analysis, don't be afraid to use them. Literally hundreds of financial professionals would be eager to assist in a little cloak-and-dagger work. Be careful, though: Their assistance often comes at a price.

Conclusion

Although interviews with witnesses in financial crimes differ from interviews with witnesses in other types of crimes, certain key interview techniques can help you as an investigator develop as much information as possible. In this chapter we have introduced you to some techniques that can aid you in both types of interviews. Our goal has been that you take two things away.

First, remember that, in general, the interview process is a dynamic relationship. The interaction between the investigator and the witness is the key to success of the interview. By employing such techniques as the use of cognitive interview skills, you can increase your chances of building better rapport. These techniques, although designed to enhance the recall of eyewitnesses to crimes, can be used effectively to enhance the recall of witnesses in financial crimes as well.

Second, preparation is the key to properly and effectively interviewing a financially knowledgeable witness. Although there is no magical list of questions that an investigator must ask, the skills you have developed reading the first section of this book should suggest a logical sequence and some general questions to use in certain financial crime interviews. Beyond that, there is nothing magical about interviewing financially bright people. Preparation will give you the edge, which will allow you to elicit the most detailed and accurate statement possible. “Be prepared” should be the motto of the financial crime interviewer, not just that of the Boy Scouts.

Table of Contents for Chapter 10: Interviewing Financially Sophisticated Witnesses

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Table of Contents for
Chapter 10: Interviewing Financially Sophisticated Witnesses