Role of interviews in investigations. Witness interviews are an essential part of most corporate investigations. While documentary evidence can provide the underlying facts of a case, it is often the accounts given by witnesses that deliver the context and detail of what has happened. They can supply vital background information, shed light on the motivations of those involved and allow for an individual’s credibility to be assessed. However, the timing, preparation, record-taking, content, and use of the interviews require careful consideration.
Role Of Interviews In Investigations
Witness interviews can serve several purposes in the context of a corporate investigation, including: to scope the investigation, to understand the facts and issues, to understand accountability and defenses, and to assess the credibility of individuals and their accounts.
Interviews in this context can present some difficulties because of the myriad employment, criminal, civil and regulatory issues that can arise and the fact that the interests of the company and the witness are often not aligned. These interviews are normally conducted confidentially and can be premised on a need to maintain legal privilege and the duty of confidence owed between an employer and employee. This is sometimes in conflict with various demands by authorities that the company provides the specifics of the witnesses’ accounts.
The right of a company to conduct its own investigations into allegations of wrongdoing, including interviewing its employees, is frequently confused with the suggestion by authorities that such investigations could (depending on how they are conducted) jeopardize a criminal or regulatory investigation. Furthermore, due to various court decisions over the last several years, the situation concerning legal privilege in the context of witness interviews has become more complicated.
In general, there are two categories of witness interviews in corporate investigations: preliminary or scoping interviews and substantive interviews. They should be distinguished from employment or disciplinary interviews.
Preliminary or scoping interviews may be appropriate at the outset of an investigation to look for background information, identify additional sources of evidence, obtain a quick understanding, and provide context to an allegation. These interviews will generally be conducted at the beginning of the investigation and, depending on the specific circumstances, may take place before any firm view has been reached on the terms of reference or extent of material that will be reviewed. They are more likely to be undertaken with employees who may have knowledge of matters under investigation but are not at direct risk of any criticism. It may also be important to undertake interviews with whistle-blowers at this stage.
Substantive interviews will generally occur after the most relevant material has been reviewed. The main purpose is to obtain a comprehensive understanding of what went on, to provide explanations of vital documents in the case, and, if necessary, to test the account given. These interviews will be used most of the time to understand any individual and corporate liability and any defenses. The timing is of the essence and can depend on several factors, including the available evidence, whether the authorities are already involved and whether civil and criminal proceedings are contemplated.
Final Thoughts
When fraud has occurred, interviewing witnesses and subjects is a specialized and critical skill used to prevent further loss and recover as much as possible. This lesson delves into the specifics of the investigation interview process.
