It’s OK to Use Zoom to Interview Witnesses
Investigators and attorneys are two professions best practiced in person. Yet, witness interviews and depositions have had to revert to video conferencing. This has invigorated debates focused on the use of body language and other physical cues to detect deception, or if someone is being coached off of the screen. It has also caused us to examine just how reliable the use of body language is to determine if someone is being dishonest.
Michael Bret Hood is a former FBI Special Agent and an expert on witness interviews. In an episode of Fraud Eats Strategy, I spoke to him about remote witness interviews and how to make the best of a bad situation using time-tested interrogation techniques.
There have been numerous academic studies, including several conducted by John Jay College of Criminal Justice and the University of Alabama at Birmingham, that have concluded that there is no single reliable body language indicator of deception. Other studies, such as Malcolm Gladwell’s book, Talking with Strangers, went even further. The outcome of these studies conclude that investigators and litigators are very good at spotting obvious liars, but not very good at perceiving “honest liars”. Honest liars are people who consciously make eye contact, greet you with a firm handshake, exude confidence and other behaviors associated with truthful people. These studies have revealed that honest liars are only detected 20% of the time. Further muddying the waters is the concept of the “nervous truth-teller”. In this case, the nervous truth-teller is being honest but exhibits the telltale signs of being particularly anxious; sweating, breaking eye contact and fidgeting. Investigators could mistakenly interpret these as indicators of deception when in fact the interviewees are just nervous. Overall, the research demonstrates the use of body language to detect deception is only reliable 52% to 53% of the time.
Remote interviews also limit the interviewers’ ability to stage the interview room. It is still possible however to use what is in the background of the interviewer to have an unconscious influence over the witness. Bret suggested the notion of “injecting morality” into the video background, for example an image of Nelson Mandela or a saying such as “The only thing necessary for the triumph of evil is for good men to do nothing.” Setting the background in this way can impact the interview subject unconsciously, particularly if they are conflicted as to whether they should be candid or not.
Using silence can be a useful interviewing technique as well. In our culture, long pauses in a conversation causes people to feel uncomfortable. The interviewer can use this tendency to their advantage. Bret suggested asking open-ended questions, allowing the witness to answer and then saying nothing afterward for a long enough interval to provoke discomfort. The normal uneasiness from pauses in the conversation is divided somewhat evenly across all participants. Not so in an interview setting because the act of being interviewed is already a source of discomfort and puts the witness at a disadvantage. Long pauses in the conversation can cause a person who is not being honest to wonder if the interviewer is doubting their statement leading them to nervously volunteer additional detail to their answer. This can sometimes undermine or contradict what was previously stated. Using long pauses in an interview makes you a more effective interviewer creating an opportunity to reflect on a witness’s answers and focus on observing them instead of concentrating on the next question which distracts from the ability to listen and observe.
Having two people participate in the interview is generally preferred; one person to lead the interview and a second person who is primarily responsible for note taking. This allows the lead interviewer to fully engage with the witness, make eye contact, listen intently and physically observe them and their body language. Having a note taker also permits the interview to flow more naturally in a conversation without interruptions to document what is being said throughout the interview. Having a note taker also aids the lead interviewer to mirror and reflect some of the behaviors being exhibited by the witness. By mimicking posture and body language, the witness can unconsciously be made to feel that the interviewer is sympathetic, a kindred spirit and someone worthy of their trust. The note taker can then be the person who points out inconsistencies in the witness’s statement by reading back something stated earlier in the interview. The timing of the questions is critical. Confronting a witness with inconsistencies in their statement should be deferred until later in the interview process after the open-ended questions have been asked.
Witness interviews in police procedural television shows and movies often depict shouting and the use of intimidation and threats. In actuality, much of what is taught in interviewing and interrogation schools focuses on finding common ground with the interview subject and building a rapport before the substantive questioning happens. While building rapport on a Zoom call is not quite the same as an in-person interview, a lot of the same proven techniques are applicable. Bret and I agreed mirroring and reflecting on what the witness is doing is an effective way of creating rapport and trust unconsciously. The interviewer can also mirror and reflect some of the witness’s words as another way of building rapport. Repeating certain slang words or phrases or restating something that was said even though it may be slanted or inaccurate as a segue into a question conveys that the interviewer is listening and makes the witness feel that there is validity to what they are saying.
Active listening is of critical importance. It encourages conversation while building a relationship between the interviewer and interviewee. Effective listeners are perceived to be more trustworthy, friendly and understanding. Active listening consists of eight different skills: Minimal Encouragers, Open-ended Questions, Reflecting/Mirroring, Emotional Labeling, Paraphrasing, “I” messages, Effective pauses and Summary. Bret elaborates on these active listening skills in his article: An Investigator’s Guide to the Science & Psychology of Investigative Interviewing, Pt. 6 – Telephonic Interviews.
Several clients have sought our advice on how to detect whether a deponent is being coached. One technique is to provide the deponent with a 360-degree camera along with a laptop with monitors displaying documents and document excerpts. Bret suggested using the Reverse Order Method. Normally, interviews or depositions are performed in chronological order. If they are being coached, they are unlikely to have rehearsed it backwards. The idea behind this is when you tell a story in chronological order, it’s easy to build upon lie after lie. But when you’re telling a story in reverse order, you shrink the lies instead of building on them making it much more difficult for liars to construct the story as opposed to truth tellers who know exactly what happened. If someone’s coaching them, that line of questioning derails the story.
The need for social distancing has reinforced something that many investigators already knew. Most of what we do as investigators can be done remotely. It is not as disruptive to client organizations and is less likely to trigger widespread anxiety and rumors than in-person investigations. While in-person interviews still have the edge from an efficacy perspective, using body language, active listening skills, 2 interviewers and a designated note taker with other proven interviewing techniques can be a very powerful alternative.
To hear the full Fraud Eats Strategy podcast episode with former FBI Special Agent Bret Hood, click here.
Note: The postings on this site are my own and do not necessarily represent White Collar Forensic’s positions, strategies or opinions.