Articles,  Issue XXI, Jan 2021

Behaviourally Informed Interviewing, a New Approach to Interviewing in Corruption Investigations

Introduction

Successful investigation and prosecution of corruption offences is a critical element in fighting corruption. Repressive measures alone are not sufficient, but the ability of a judicial system to impose dissuasive criminal sanctions plays a major deterrent role and is a clear sign that corruption is not tolerated.

The investigation of corruption is however very demanding. This can relate to the complexity of the regulatory setting or the ingenious set-up of corporate constructions, but also to the profile of its perpetrators. Typically, these are educated, intelligent and calculated persons, supported by quality defence lawyers.[1]See, e.g.: Hoekstra, M. (2017), Investigative interviewing of high-status fraud suspects: distinctive features, FIOD.

This raises the stakes for the interview of the suspect. Specialist knowledge and skills are required to cull out the incriminating facts and the malicious intent of the perpetrator. Recent findings in social and cognitive psychology might contribute to meeting this challenge.

Perceptions on interviewing

The importance of interviews in investigations in general and in financial and economic crime in particular is sometimes put in question[2]For a recent article claiming that ‘interviews’ in financial criminal matters should better be done by means of a written exchange, see: … Continue reading. Recurring challenges of the value of interviews are the idea that digital and forensic evidence are all-decisive and that active lawyers prevent the interviewee from giving – if any – a statement with added evidential value. Moreover, academic research over the last years has occasionally raised doubts as to the credibility of statements[3]See, e.g.: Kassin, S. M., Drizin, S. A., Grisso, T., Gudjonsson, G. H., Leo, R. A., Redlich, A. D. (2010) Police-induced confessions, Risk factors and recommendations, Law and Human Behavior, 2010, … Continue reading.

While legitimate, these claims beg for some nuance.

Digital- and forensic evidence is definitely on the rise and crucial in many investigations, including corruption investigations (think: a confidential email in a case of bribery or the bank transfer in a case of embezzlement). This however does not affect the fact that the statements of witnesses and suspects are still the most used pieces of evidence, which bring these findings alive and have great convincing power on the prosecutor and beyond[4]See, e.g.: Bockstaele, M. (2018), Handboek verhoren (manual interviewing), Part 1, 2nd edition, p. 27; World Bank Group, Investigations of corruption and money laundering, p. 14, adapted from the … Continue reading. If forensic evidence delivers the building blocks for evidence, statements are its cement. The suspect interview in particular remains a very important part of the evidence presented in the prosecution of criminal cases[5]See, e.g.: Verhoeven, W.J. and Duinhof, E., (2017) Effectiviteit van het verdachtenverhoor (effectiveness of the suspect interview), Politie & Wetenschap, Rotterdam: Erasmus School of Law, p. 19.. This is in particular the case for corruption offences, where demonstrating criminal intent is crucial.

Many offenders in white-collar crimes indeed deny having a criminal intent rather than denying a criminal event had occurred[6]Benson, M.L. (1985) Denying the guilty mind: accounting for involvement in white-collar crime, Criminology, vol. 23, pp. 583-607.. Moreover, they are particularly prone in presenting exonerations concerning the seriousness of the facts or culpability[7]Sykes, G. and Matza, D. (1957) Techniques of neutralization: a theory of delinquency, American Sociological Review, pp. 664-670.. When the success rate of corruption investigations is arguably quite modest, this could refer in many cases to the lack of demonstrating ‘mens rea’. Whereas the intentional nature of an act or omission in relation to corruption may be inferred from objective, factual circumstances, direct evidence obtained in a professional and strategic interview is likely to be the investigator’s best shot in probing and demonstrating such guilty intent.

As regards the anticipation that the presence of (more active[8]A Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings adopted on 22 October 2013 by the European Parliament and the Council … Continue reading) lawyers during interviews would lead to an increase of non-declaring or obstructing suspects, this has been disconfirmed by several scientific studies[9]See, e.g. Blackstock, J., Cape, E., Hodgson, J., Ogorodova, A.& Spronken, T. (2014) Inside police custody. An empirical account of suspects’ rights in four jurisdictions, Antwerp: Intersentia, … Continue reading. They found on the contrary that the presence of lawyers lead to more professionalism on both sides of the table and hence more relevant interviews. Interestingly, the same studies picture a scenario where, in complex investigations (think: corruption cases), the interview becomes part of the conclusive proceedings at the end of the investigation, focused on the confirmation or information of evidence gathered and characterized by an increase of influencing, persuasion and negotiation tactics from the part of the defence[10]See. Vanderhallen et Al., op. cit., p. 153..

Finally, academia has rightly identified and highlighted the dangers of suggestive and manipulative interviewing techniques, in particular when they lead to false confessions by vulnerable persons[11]See e.g.: Meissner, C.A., Redlich, A.D., Michael, S.W., Evans, J.R., Camilletti, C.R., Bhatt, S. & Brandon, S. (2014) Accusatorial and information-gathering interrogation methods and their … Continue reading. Referring mainly to several miscarriages of justice in murder cases involving several and often vulnerable suspects, this doctrine and jurisprudence does not immediately seem to affect many corruption investigations. These suspects are not likely to make coerced false confessions readily.

In all, interviews thus remain a crucial part of any corruption investigation.

Interview models

Investigative interviewing is the term used for a modern approach to interviewing, based on respect for every interviewee and the search for accurate and complete information. The key elements are establishing ‘rapport’ with the interviewee, gathering information by listening carefully to his or her account, and asking open questions.

Its main model is PEACE[12]PEACE is the acronym referring to the basic steps of the model: P(lanning and preparation), E(ngage and explain), A(ccount, clarification and challenge), C(losure) and E(valuation). For an … Continue reading, developed in the UK in 1992 and put forward as a model of efficient and ethical interviewing by the UN[13]See: Méndez, J.E. (2016) Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, submitted to the General Assembly of the UN on 05.08.2016 … Continue reading. In a 2016 text, the latter advocates for the participating States to design an interview model for universal application (including the interview by administrative investigative bodies) that is: “non-coercive, ethically sound, evidence-based and empirically founded[14]Interim report, op. cit., point 25, page 7.. PEACE complies with these standards.

However, stemming from a different frame (interviews in common crime for PEACE and the interrogation of detainees in the UN Protocol) and marked by strong opposition to accusing and manipulative methods[15]Mainly the REID-model used in the USA (see: Inbau, F.E., Reid, J.E., Buckley, J.P. & Jayne, B.C. (2013) Criminal interrogation and confessions, Burlington, Jones & Bartlett Learning., neither the PEACE-model nor the UN-Protocol seem to have fully taken into account the specifics of interviewing in corruption investigations. Moreover, they do not integrate other relevant insights, emerging from scientific research commissioned in the aftermath of reports on unacceptable interview practices in Guantanamo. This research has identified and validated strategic and tactical interviewing techniques, focused on eliciting information in an intelligence setting but also relevant for the interview in corruption cases[16]See: High-Value Detainee Interrogation Group, Interrogation: a review of the science, 2016, available at https://www.fbi.gov/…/hig-report-interrogation-a-review-of-the-science-september-2016.pdf .

Arguably equally relevant for interviews in corruption investigations are the robust findings in behavioural sciences on how people judge and take decisions, especially in conditions of uncertainty. We refer to the findings of ‘dual processing’, that is, the understanding that two structurally divided cognitive systems intervene in human decision-making. Researchers today converge to the idea that intuitive thinking and decision-making (often called: system 1) provides quick and often subconscious answers based on rules of thumb, whereas only another, deliberate processing mode (called system 2) is capable of abstract, sequential, say: rational thinking[17]See, to mention only one of the most seminal works: Kahneman, D. & Tversky A., (1974) Judgment under Uncertainty: Heuristics and Biases, Science. For an overview, see: Frankish, K., Evans, J.S., … Continue reading.

Whereas these ground-breaking insights are applied with growing success across different fields, its use in interview seems un(der)exploited, even when its relevance cannot be denied. Already, on a conceptual level, the interaction between intuitive and deliberative thinking is a mainstream challenger of the rational choice theory to explain the path to corruption[18]Elffers, H. (2010). De rationele-keuzetheorie van de regelovertreding. In P. J. van Koppen, H. Merckelbach, M. Jelicic, & J. W. de Keijser (Eds.), Reizen met mijn Rechter. De psychologie van … Continue reading. Moreover, this ‘science of choice’ provides the interviewer with valuable insights and tactical leverage when facing an interviewee who has to make a continuous series of choices and decisions (e.g. what to tell during the free account, how to react to evidence presented, etc.), all affected by this dual processing. Understanding, for instance, how System 1 enforces a consistent cooperation after an early commitment by the interviewee, or how it affects the perception of the strength of evidence, allows the interviewer to design an interview approach, which is both effective and respectful for the freedom of statement.

BINT

Behaviourally informed interviewing (BINT)[19]Willems, T. (2020) Behaviourally Informed Interviewing. Maklu editors (www.maklu.be). is a new approach to interviewing, which tries to integrate these findings on how people judge and make decisions in a generally accepted interview model. It is based on the PEACE model, includes social influence[20]See, e.g. Cialdini, R.B., Goldstein, N.J., (2004) Social Influence: Compliance and conformity, Annual Review of Psychology, Vol. 55/1, pp. 591–621. and persuasion tactics[21]See, e.g. Petty, R.E., Cacioppo J.T. (1986) The elaboration likelihood model of persuasion, New York, Springer. and inserts insights of dual processing to address the specific challenges of interviewing suspects in corruption and fraud investigations.

Rather than a one-size-fits-all model, BINT offers a display of behaviourally informed interventions for flexible use by the professional interviewer, throughout the whole chain of constituent desired actions, from making a good first impression when picking up the interviewee at the reception desk, over developing ‘rapport’, to inviting the interviewee to tell the whole truth. This is achieved in a sequential and funnel-based approach, where the interviewee is first asked to bring his or her own story, which is then further developed by clarification and completion questions, before moving to a more challenging phase of the interview. This is when the interviewer strategically uses the available evidence[22]See, e.g. Hartwig, M., Granhag, P.A., Luke, T. (2014), Strategic use of evidence during investigative interviews: The state of the science, Credibility assessment: Scientific research and … Continue reading to elucidate inconsistencies, whilst overcoming resistance by a synchronizing approach[23]See, e.g. Taylor, P.J. (2015), Interpersonal sensemaking in crisis negotiations, Washington D.C., Final Report to the High-Value Detainee Interrogation Group..

Also at this stage, ‘rapport’ remains a necessary condition to apply social influence tactics and persuasion strategies informed by insights from dual processing. Examples of the latter are the use of loss aversion[24]See, e.g. Zamir, E. (2014), The role of loss aversion, Law, psychology and morality, pp. 34-34. and contrast effects[25]See, e.g. Rachlinski, J.J., Guthrie, C., Wistrich, A.J. (2013), ‘Altering Attention in Adjudication’, Cornell Law Faculty Publications, 642.. By means of a behaviorally informed question- and persuasion design, BINT seeks the truth whilst preserving the interviewee’s freedom to give a statement or remain silent. It does so with the understanding that influence and persuasion can be situated on a continuum ranging from conformity, over defiance to resistance and that the interviewer wants the interviewee to be in the middle of this continuum: cooperating but not just accepting everything, critical and contradicting wrong information based on a discussion on facts.

Throughout this approach, the presumption of innocence prevails and is actively operationalised by the interviewer, who should keep an open mind and also probe for exculpatory evidence. He or she has the obligation to preserve the fundamental rights of each interviewee and should apply the law with integrity and respect towards all members of the public, including those members of the public who may be suspected of involvement in crime[26]Boyle, M., Vullierme, J.-C. (2018), A brief introduction to investigative interviewing, A practitioner’s guide, Council of Europe, p. 7. . The key objective of BINT is to obtain correct, accurate and complete information, which can also, but does not necessarily, come in the form of an admission or confession.

Conclusion

The success of the fight against corruption hinges largely on successful investigations and prosecutions. One of the main and most demanding challenges in such investigations is to conduct quality interviews. Such interviews pose serious challenges for the investigators because of the high profile of its typical perpetrator, the specialist subject knowledge required to challenge his or her explanations and, foremost, the difficulty to demonstrate criminal intent.

The particularity of such interviews would already seem to warrant renewed interest in social influence and persuasion tactics validated by science. Its inherent risks (coerced false confession) do not immediately seem to apply to the interview of suspects of corruption.

Moreover, recent scientific insights on how people judge and make decisions based on a dual processing system offer new and promising venues to increase their effectiveness and efficiency, without trespassing legal and ethical boundaries of a fair investigation.

Further to the creation of specialised services[27]See Agence Française Anticorruption, 2020, Global Mapping of anti-Corruption Authorities. Analysis Report, available at: … Continue reading, legal practitioners involved in corruption investigations deserve specialised investigation tools. BINT aims to contribute to this, by offering a science-based and practitioner-oriented interview model, displaying strategic and tactical interviewing techniques claiming efficiency whilst preserving the interviewee’s procedural rights.

 

References

References
1See, e.g.: Hoekstra, M. (2017), Investigative interviewing of high-status fraud suspects: distinctive features, FIOD.
2For a recent article claiming that ‘interviews’ in financial criminal matters should better be done by means of a written exchange, see: https://www.bijzonderstrafrecht.nl/home/column-de-voordelen-van-het-schriftelijke-verhoor-in-financile-strafzaken
3See, e.g.: Kassin, S. M., Drizin, S. A., Grisso, T., Gudjonsson, G. H., Leo, R. A., Redlich, A. D. (2010) Police-induced confessions, Risk factors and recommendations, Law and Human Behavior, 2010, 34, 3-38; Leo, R.A., Cutler, B.L., (2016) False Confessions in the Twenty-First Century, Champion, 46.
4See, e.g.: Bockstaele, M. (2018), Handboek verhoren (manual interviewing), Part 1, 2nd edition, p. 27; World Bank Group, Investigations of corruption and money laundering, p. 14, adapted from the Asset Recovery Handbook (2011). A guide for practitioners., Stolen Asset Recovery Initiative, The World Bank, UNODC, p. 52.
5See, e.g.: Verhoeven, W.J. and Duinhof, E., (2017) Effectiviteit van het verdachtenverhoor (effectiveness of the suspect interview), Politie & Wetenschap, Rotterdam: Erasmus School of Law, p. 19.
6Benson, M.L. (1985) Denying the guilty mind: accounting for involvement in white-collar crime, Criminology, vol. 23, pp. 583-607.
7Sykes, G. and Matza, D. (1957) Techniques of neutralization: a theory of delinquency, American Sociological Review, pp. 664-670.
8A Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings adopted on 22 October 2013 by the European Parliament and the Council (O.J. L 294, 6.11.2013, p. 1) provides that in EU Member States, lawyers can ‘actively participate’ in the interview.
9See, e.g. Blackstock, J., Cape, E., Hodgson, J., Ogorodova, A.& Spronken, T. (2014) Inside police custody. An empirical account of suspects’ rights in four jurisdictions, Antwerp: Intersentia, pp. 1-575; Vanderhallen, M., de Jong, A., Nelen, H. & Spronken, T. (2014) Rechtsbijstand en de waarde van het verhoor. Een studie naar de te verwachten gevolgen op de verklaringsbereidheid en de opsporing en bewijsvoering in strafzaken van het verlenen van rechtsbijstand voorafgaand en tijdens het verhoor, Maastricht University, p. 1 -196 (English summary starting page 151).
10See. Vanderhallen et Al., op. cit., p. 153.
11See e.g.: Meissner, C.A., Redlich, A.D., Michael, S.W., Evans, J.R., Camilletti, C.R., Bhatt, S. & Brandon, S. (2014) Accusatorial and information-gathering interrogation methods and their effects on true and false confessions: a meta-analytic review, Journal of Experimental Criminology, 10, pp. 459-486.
12PEACE is the acronym referring to the basic steps of the model: P(lanning and preparation), E(ngage and explain), A(ccount, clarification and challenge), C(losure) and E(valuation). For an introduction to PEACE, see: https://www.app.college.police.uk/app-content/investigations/investigative-interviewing
13See: Méndez, J.E. (2016) Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, submitted to the General Assembly of the UN on 05.08.2016 in accordance with Assembly resolution 70/146, A/71/298, available at https://www.apt.ch/en/resources/a-universal-protocol-for-investigative-interviewing-and-procedural-safeguards/ See point 47 for the recommendation of PEACE.
14Interim report, op. cit., point 25, page 7.
15Mainly the REID-model used in the USA (see: Inbau, F.E., Reid, J.E., Buckley, J.P. & Jayne, B.C. (2013) Criminal interrogation and confessions, Burlington, Jones & Bartlett Learning.
16See: High-Value Detainee Interrogation Group, Interrogation: a review of the science, 2016, available at https://www.fbi.gov/…/hig-report-interrogation-a-review-of-the-science-september-2016.pdf
17See, to mention only one of the most seminal works: Kahneman, D. & Tversky A., (1974) Judgment under Uncertainty: Heuristics and Biases, Science. For an overview, see: Frankish, K., Evans, J.S., The duality of mind: An historical perspective, In Two Minds: Dual processes and beyond, Oxford, Oxford University Press, 2009.
18Elffers, H. (2010). De rationele-keuzetheorie van de regelovertreding. In P. J. van Koppen, H. Merckelbach, M. Jelicic, & J. W. de Keijser (Eds.), Reizen met mijn Rechter. De psychologie van het recht (pp. 53-66). Deventer: Kluwer; Köbis, N., (2018) The social psychology of corruption, doctorate thesis, Amsterdam, Vrije Universiteit Amsterdam.
19Willems, T. (2020) Behaviourally Informed Interviewing. Maklu editors (www.maklu.be).
20See, e.g. Cialdini, R.B., Goldstein, N.J., (2004) Social Influence: Compliance and conformity, Annual Review of Psychology, Vol. 55/1, pp. 591–621.
21See, e.g. Petty, R.E., Cacioppo J.T. (1986) The elaboration likelihood model of persuasion, New York, Springer.
22See, e.g. Hartwig, M., Granhag, P.A., Luke, T. (2014), Strategic use of evidence during investigative interviews: The state of the science, Credibility assessment: Scientific research and applications, Waltham, Academic Press.
23See, e.g. Taylor, P.J. (2015), Interpersonal sensemaking in crisis negotiations, Washington D.C., Final Report to the High-Value Detainee Interrogation Group.
24See, e.g. Zamir, E. (2014), The role of loss aversion, Law, psychology and morality, pp. 34-34.
25See, e.g. Rachlinski, J.J., Guthrie, C., Wistrich, A.J. (2013), ‘Altering Attention in Adjudication’, Cornell Law Faculty Publications, 642.
26Boyle, M., Vullierme, J.-C. (2018), A brief introduction to investigative interviewing, A practitioner’s guide, Council of Europe, p. 7.
27See Agence Française Anticorruption, 2020, Global Mapping of anti-Corruption Authorities. Analysis Report, available at: https://www.coe.int/en/web/greco/-/global-mapping-of-anti-corruption-authorities