Certified Investigator's Manual 2021 PDF

Certified Investigator’s Manual Certified Investigator’s Manual A Guide to Conducting Critical Incident Investigations PA Department of Human Services, Office of Developmental Programs Through a contract with Temple University Harrisburg...

Certified Investigator’s Manual Certified Investigator’s Manual A Guide to Conducting Critical Incident Investigations PA Department of Human Services, Office of Developmental Programs Through a contract with Temple University Harrisburg 2021 – Version 1.1  Certified Investigator’s Manual TABLE OF CONTENTS Overview................................................. 2 Chapter 1 Concepts and Definitions............................... 6 Chapter 2 Investigation Structure................................. 13 Chapter 3 Objectivity, Speed, and Thoroughness........................ 14 Chapter 4 Investigative Planning................................. 23 Chapter 5 Physical Evidence.................................... 28 Chapter 6 Testimonial Evidence.................................. 31 Chapter 7 Documentary Evidence................................. 52 Chapter 8 Evidence from Digital Sources............................. 53 Chapter 9 Reconciling Evidence.................................. 56 Chapter 10 Certified Investigator Report.............................. 58 Appendices I. Glossary....................................... 70 II. Witness Statement Form............................. 73 III. Evidence Logs.................................... 75 IV. Checklists...................................... 78 V. Investigative Plan and Methodology....................... 80 VI. Structuring the Initial Witness Interview..................... 81 VII. Examples of Documentary Evidence....................... 82 VIII. Considerations Used to Reconcile Conflicting Testimonial Evidence..... 85 2021 Version 1.1 1|Page  Certified Investigator’s Manual Overview The Commonwealth of Pennsylvania serves individuals with an intellectual disability or autism. These individuals receive services from a vast network of private and public service and support providers throughout the Commonwealth. In accordance with the Office of Developmental Programs Bulletin on Incident Management, #00‐21‐02, issued by the Pennsylvania Department of Human Services, Office Developmental Programs (ODP), this manual was developed to provide continuing guidance to the Certified Investigator (CI), agency/organization Administrators and Managers, and others on how to conduct investigations properly. The Office of Developmental Programs (ODP) mission is to support Pennsylvanians with developmental disabilities to achieve greater independence, choice, and opportunity in their lives. As part of this mission, ODP is committed to providing the necessary tools and resources to conduct quality investigations into incidents of abuse, neglect, and other significant events that occur in the lives of individuals with intellectual disabilities and autism. Underlying the principles outlined in the Incident Management Bulletin, it is the expectation and responsibility that individuals supported through the ODP system deserve not only quality services and programs but are to be protected from harm, particularly from incidents involving abuse, neglect, exploitation, and rights violations. To accomplish this principle, the Incident Management Bulletin outlines key roles and responsibilities service providers must have in place to more effectively manage incidents involving harm, or the potential for harm, involving individuals receiving services. ODP requires that a person be certified based on this manual's content to investigate critical incidents. An essential part of the incident management system is ensuring that trained CIs are available who possess technical competencies in conducting investigations and understand the protocols outlined in this manual and the CI course. Qualities of CIs The CI is of critical importance in any organization. As stated above, it is the expectation and responsibility that individuals supported through the ODP system deserve not only quality 2021 Version 1.1 2|Page  Certified Investigator’s Manual services and programs but also protection from harm, particularly from incidents involving abuse, neglect, exploitation, and rights violations. CIs are critical to addressing incidents involving harm or the potential for harm, with individuals receiving services to accomplish this principle. The CI must have a reputation for honesty and credibility and provide reassurance to individuals involved in the incident. The CI must possess critical thinking skills for creating an investigation that is planned, thorough, organized, and competently conducted. The CI may have to appear before a hearing officer, arbitrator, administrative law judge, or even a jury if litigation results. In this context, the CI must be able to present as an authoritative and credible witness. Characteristics of a good CI include:  High ethical standards  Excellent critical thinking and problem‐solving skills  Ability to think ahead and plan  Excellent communication skills  Versatile interviewing techniques  Curiosity  A personality that doesn’t need to be the most popular member of the organization  Knowledge of DD/ID system  Good judgment about when to call for the assistance of experts  Understanding external reporting responsibilities This list is just the start of what makes a good investigator. CIs should self‐evaluate their strengths related to investigations and communicate their needs related to professional growth to their supervisor. There is no perfect CI. Every person must assess their own skills for the role of CI. Just like in every area of our professional life, we must utilize our strengths effectively and find ways to improve in the areas that need growth. 2021 Version 1.1 3|Page  Certified Investigator’s Manual Organizational Characteristics Any internal investigation must have the support of senior management. In essence, the CI functions directly under the authority of the Chief Executive Officer of the organization. Service providers should carefully address policies and procedures relating to the kinds of information shared regularly with the board of directors regarding incident management and investigations. Employees also need to understand their roles and responsibilities relating to participation in the investigation process. CI Sam is new to the agency. As part of their orientation, Sam went to ODP’s CI course. Within the first month of the job, Sam was assigned a case that involved one of the most liked employees in the agency. This is a difficult situation as being a CI is only one part of Sam’s job and the other parts demand effective team work and collaboration. It is important that Sam not be affected by the desire to be liked in the new job or their other roles. Sam should seek out supervisory and expert assistance to help remain objective during the investigation. The CI must have the authority to manage the investigation process. Depending on the complexity of an organization, different departments and individuals may be involved in the investigation, which can sometimes result in more than one person attempting to direct the investigation. At the same time, however, the CI should never feel alone in the investigation process. The organization’s management must be willing to provide support when the CI encounters unique or challenging situations. For example, suppose the CI finds that they cannot collect testimonial evidence from the target, victim, or another witness for whatever reason. In that case, the CI may need their management’s support in deciding when to move on with the remainder of the investigation without that specific piece of evidence. As much as is possible, the organization should support the CI to do an adequate number and frequency of investigations to keep their investigative skill set sharp, while at the same time not doing so many that they become overwhelmed. 2021 Version 1.1 4|Page  Certified Investigator’s Manual On a practical level, the assigned CI must have and be provided the time to conduct a quality investigation. All principles of an investigation, including objectivity, speed, and thoroughness, can be compromised when the CI has overwhelming competing requirements on their time. Additionally, a CI should not be assigned who is expected to have an upcoming leave request that will interfere with their investigation's timeliness or thoroughness. In all situations, organizations should ensure that they have an adequate number of investigators on staff or through a contract to ensure all investigations can meet the investigation standards. When there are multiple CIs, either internal or external to the organization, involved in a specific incident investigation, it is critical to identify the person functioning as the “lead CI” and communicate that to the other parties involved in the investigation. Whistleblower Law The work of a CI is protected under Pennsylvania’s Whistle Blower Law.1 No employer may discharge, threaten, or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste. Additionally, no employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee is requested by an appropriate authority to participate in an investigation, hearing, or inquiry held by an appropriate authority or in a court action. As recommended by the Pennsylvania Office of State Inspector General, specific questions about the applicability of the Whistleblower Law to any particular complaint should be directed to a properly licensed attorney.2 1 https://www.legis.state.pa.us/WU01/LI/LI/US/HTM/1986/0/0169..HTM 2 https://www.osig.pa.gov/Pages/Whistleblower-Law.aspx 2021 Version 1.1 5|Page  Certified Investigator’s Manual Chapter 1: Concepts and Definitions ODP has defined critical incidents as a type of incident that has been determined to be a sufficiently serious indicator of risk that requires an investigation by CI. Critical incident investigations are part of the comprehensive quality management process that organizations providing services in Pennsylvania’s intellectual disability and autism systems must have in place. The purpose of quality management in these systems is to advance the quality of life of individuals served and supported. Risk management is the proactive and responsive management of potential risks to an organization, its employees, clients, customers, etc. Areas of risk management include incident management, complaints, satisfaction surveys, employee injuries, hiring practices, etc. Incident management is part of the greater risk management process. Incident management is used to ensure that through the application of standardized processes, systematic safeguards are in place to protect individuals receiving services from events with the potential to place them at risk. The incident management processes include the expectation that CIs conduct investigations at the provider, administrative entity, and state levels. This expectation ensures that all critical incidents receive a systematic investigation that meets established standards. The illustration below shows the relationship between critical incident investigations, incident management, risk management, and quality management. Quality Management Risk Management Incident Management Critical Incident Investigations 2021 Version 1.1 6|Page  Certified Investigator’s Manual An incident is an event with the potential to adversely impact an individual’s health, safety, or rights. A critical incident is a type of incident that has been determined to be a sufficiently serious indicator of risk that it requires an investigation by a Department Certified Investigator. The ODP Incident Management Bulletin identifies the types of incidents requiring investigations, provided in the following chart. Primary Category Secondary Category Entity Responsible to Ensure Investigation Abuse All Provider Misapplication/Unauthorized use Provider and County ID of restraint (injury) Program/AE Death Natural Causes – Services Provider Provided Unexpected – Services Provided Provider Exploitation All Provider Medical Provider and County ID Responsibilities/Resources Program/AE Room and Board Provider and County ID Program/AE Unpaid labor Provider and County ID Program/AE Neglect3 All Provider Rights Violation All Provider Unauthorized Restrictive Provider and County ID Procedure Program/AE Serious Injury Injury Accidental Provider Injury Unexplained Provider Choking Provider Pressure Injury (Decubiti, Provider Pressure Ulcer, Pressure Sore, Bedsore) Sexual Abuse All Provider Suicide Attempt All Provider An investigation is the process of identifying, collecting, and assessing evidence from a reportable incident in a systematic manner. The purpose of an investigation is to objectively describe and explain what did (or did not) occur at a given place and time, based on the applicable standard of evidence. For critical incident investigations, this standard of evidence is preponderance, which will be explained later in this chapter. In order for the CI to describe and explain what did or did not happen with regard to the reported incident, the CI must 3 This does not include incidents of Passive-Neglect and Self-Neglect 2021 Version 1.1 7|Page  Certified Investigator’s Manual understand what did and did not happen as fully as possible. To accomplish this, the CI should strive for thoroughness in their investigation. Thoroughness will be explained in a later chapter of this Manual. Identifying, Collecting, Sorting, and Classifying Evidence One of the primary roles of a CI is to identify, collect, sort, and classify available evidence. EVIDENCE RELEVANT IRRELEVANT Evidence is defined as pieces of information that helps to tell the story of what did and did not occur. The CI identifies and collects all evidence available to the investigation. The process of sorting occurs when the CI reviews and reconciles all of their evidence. Sorting relates to determining what evidence is relevant to the investigation. Evidence is relevant if it potentially describes or explains an incident. Evidence is considered irrelevant if it does not have the potential to describe or explain an incident. During the investigation, the CI should collect all available evidence that can help tell the story of what happened. 2021 Version 1.1 8|Page  Certified Investigator’s Manual Once identified as being potentially relevant, evidence is classified to the type and form it takes. Every piece of evidence has both a type and a form. Two types of evidence emerge in any investigation. DIRECT EVIDENCE Direct evidence is evidence in the form of testimony from a witness who was present for the incident and experienced any of the specific details of that incident through sight, hearing, touch, taste, or smell (e.g., the testimony of a witness that they saw the target having sexual intercourse with the individual or testimony of an individual that they felt someone hit them on the back of their head). CIRCUMSTANTIAL EVIDENCE Circumstantial evidence is evidence that is not directly from an eyewitness or participant, and as a result, requires some reasoning to prove how it relates to other details of the incident (e.g., the testimony of a witness who did not see the actual sexual intercourse taking place, but saw the target pulling up his pants when they walked into the room). Circumstantial evidence is no less important than direct evidence. Before going to bed, you look outside and the sky is perfectly clear. When you wake up the next morning and look outside, there is snow on the ground and your car is covered. Based on this, you can clearly conclude that it snowed overnight. You did not directly see it snow but you can infer that is snowed based on the conditions you observe. Just like in this example, we do not need direct evidence in critical incident investigations to determine what happened during the incident. 2021 Version 1.1 9|Page  Certified Investigator’s Manual Evidence is also classified by the form it takes. The three major forms of evidence are testimonial, documentary, and physical evidence. Physical Evidence Physical evidence is an object or thing such as an injury, weapon, fluids, equipment, furniture, or environmental factors like noise levels, temperature, and lighting. Physical evidence relevant to the time/place of an incident’s alleged occurrence is identified and preserved. Physical evidence is also the absence of things that otherwise should reasonably be present or available based on the testimony of witnesses, like the absence of an injury that should be present if the testimony is accurate. Spatial relationships among things are another kind of physical evidence available for assessment in an investigation. An example of this kind of physical evidence could be the location of people in a room or the distance of witnesses to the incident location itself. Physical evidence is preserved through photographs and/or diagrams. Testimonial Evidence Testimonial evidence is a witness' communication to a CI, in verbal form or the equivalent (sign language, gestures, behaviors, etc.), of their memories of their experiences or observations related to the incident under investigation ‐ a story. All testimonial evidence is preserved in written format. Documentary Evidence Documentary evidence is anything written down, on paper, or electronically. Examples of relevant documentary evidence to be identified and collected during an investigation are the provider's business records, supports coordination, and other organizations (e.g., Individual Support Plans, medical records). Sometimes even when a CI has a good understanding of the types and forms of evidence, they will encounter a piece of evidence that they are unsure how to classify correctly. In these instances, the CI needs to remember the purpose of an investigation: to objectively describe and explain what did (or did not) occur at a given place and time based on a preponderance of evidence standard. Classification of evidence as to its precise type or form is secondary in importance to the CI collecting and/or preserving the piece of evidence for use in gaining a complete understanding of the incident under investigation. 2021 Version 1.1 10 | P a g e  Certified Investigator’s Manual Classification of the piece of evidence as to its precise type or form is secondary in importance to the CI collecting and/or preserving the piece of evidence for use in gaining a full understanding of the incident under investigation. Legal Standards of Burden of Proof Legal standards of the burden of proof define the level of evidence necessary to prove an allegation. CIs utilize the preponderance of evidence standard when conducting investigations. This standard of evidence generally applies to civil or administrative proceedings requiring that conclusions of fact be based on the weight of the evidence. Other definitions characterize the preponderance standard as being convinced that the conclusion drawn about the incident is “more likely than not” to have occurred or that 51% or more evidence supports one conclusion over another. The CI utilizes this standard of evidence to evaluate which of two seemingly contradictory pieces of evidence gathered in the investigation is most likely to be a reflection of what occurred during the incident. Reconciling evidence will be further discussed in the chapter on Reconciling Evidence. Understanding the preponderance standard helps the CI to tell the story of what is more likely than not to have happened based on the evidence when writing the Certified Investigator Report (CIR). The CI’s role is not to find “the truth” or know what happen “for sure”. The CI’s role is to collect evidence that will tell the story and help the Administrative Review Committee make an investigation determination. The Administrative Review Committee uses the preponderance standard to determine the weightiness of the overall evidence to make a final determination regarding the incident. While the CI is not a member of the Administrative Review Committee for their case, it is essential to know what level of evidence is used before making a final determination. The Administrative Review will be discussed later in this manual. Although it is not used in critical incident investigations, a second legal standard of burden of proof is beyond a reasonable doubt standard. This standard is the burden of proof needed to be 2021 Version 1.1 11 | P a g e  Certified Investigator’s Manual satisfied in criminal proceedings to determine a defendant guilty. It is generally defined to mean no "reasonable doubt" can exist in the mind of a reasonable person that the defendant is guilty. Doubt can still exist, but only to the extent that it does not affect a reasonable person's belief that the defendant is guilty. The investigation process does not utilize a beyond a reasonable doubt standard. It is important, though, to understand this standard for cases that involve law enforcement. The CI should be careful about making determinations based on law enforcement’s findings or decision to investigate. The criminal justice system utilizes a beyond a reasonable doubt standard of evidence, which is far higher than the preponderance of evidence standard used by CIs. Law enforcement may determine that they have insufficient evidence to pursue a case further or even refuse to investigate a case that could be confirmed to a preponderance of the evidence standard. Jane is saying someone hurt her “down there”. She doesn’t know who the person was and does not want anyone to examine her. The police respond. They state that because she is not clear on what happened and won’t go for an examination that there is nothing they can do. This is based on their need to find evidence at a beyond a reasonable doubt standard. CI Joe continues his investigation. Joe further interviews Jane and she repeatedly says “he touched me, he touched me”. Joe interviews staff who state that Jane has no history of these complaints and are worried something happened to her. Joe also discovers that the day of her complaints was the last day of one of the only male staff at the house. Joe tries to interview that former staff person, but they won’t return his calls. He follows up a few days after his initial interview with Jane, and she states “I am good. Things changed. He doesn’t hurt me now.” We don’t know with certainty what happened, but we don’t need to. Based on Joe’s investigation, the Administrative Review Committee confirms this case as sexual abuse, as it is at least slightly more likely that it occurred than not from the story told by the evidence. 2021 Version 1.1 12 | P a g e  Certified Investigator’s Manual Chapter 2: Investigation Structure Investigation Structure There are generally four stages of activities occurring in any investigation of a critical incident: intake and preservation of evidence, identification and collection of evidence, the analysis and documentation of the evidence collected, and Administrative Review, including implementing recommendations and corrective actions. STAGE OF INVESTIGATION RESPONSIBILITY KEY TASKS AND ACTIVITIES Organization Point Person 1. Ensure safety and well‐being of people; provide Stage 1 medical treatment as necessary. INTAKE Site Supervisors 2. Separate target(s) from contact with individuals PRESERVE EVIDENCE Agency Management receiving services. 3. Preserve relevant evidence and, if possible, keep it unaltered. 4. Assign Certified Investigator. Certified Investigator 1. Create an investigative plan. Stage 2 2. Check on the safety and well‐being of the IDENTIFY victim. COLLECT 3. Review activities of intake and preservation with management. 4. Review incident with Reporter. 5. Identify and preserve physical evidence. 6. Sort, classify and interview witnesses. 7. Obtain written statements. 8. Identify and collect documentary evidence. Certified Investigator 1. Review and assess collected evidence. Stage 3 2. Conduct background interviews when relevant. ANALYSIS 3. Conduct follow‐up interviews when relevant. DOCUMENTATION 4. Conduct final reconciliation of evidence. 5. Complete the Certified Investigator Report (CIR). Administrative Review 1. Review competency and quality of investigation. Stage 4 Committee 2. Make investigation determination: confirmed, ADMINISTRATIVE REVIEW not confirmed, or inconclusive. Note: The CI should be 3. Determine corrective actions. involved in Stage 4 as 4. Complete the Administrative Review section of needed to answer the the CIR. committee’s questions about the investigation. Note: Additional Administrative Review tasks are described in the Administrative Review Manual. 2021 Version 1.1 13 | P a g e  Certified Investigator’s Manual Chapter 3: Objectivity, Speed, and Thoroughness Objectivity, speed, and thoroughness are three critical elements for every investigation. All three of these elements must be adhered to throughout the entire investigation process. If they are not, the quality of the Investigation suffers, which can lead to a myriad of issues, including:  The final determination made by the Administrative Review committee may not be based on complete, objective, or accurate information.  Corrective Actions may not be made with all the information necessary to ensure that the actions will have the best chance of mitigating future risk.  The quality and validity of the investigation and the resulting follow‐up actions could be called into question when reviewed by others in the ODP system, in grievances of employment actions, or even in legal proceedings. Objectivity A key element of quality investigations are considerations associated with objectivity. Objectivity in the broadest sense is the ability to describe or perceive something without being influenced by personal emotions, experiences, bias, or opinion. Investigators must conduct investigations with methods that will demonstrate to others that bias has not influenced their decisions. Investigation objectivity must consider even unconscious bias, which is social stereotypes about certain groups of people that we form outside our conscious awareness. The rules associated with objectivity in an investigation will be applied in several ways throughout the investigation process, including:  Conducting investigations without conflicts of interest  Identifying witnesses based on their relevance to the incident  Reconciling evidence without bias toward certain witnesses  Telling the story of what happened using a preponderance of the evidence standard Efforts should be made to minimize bias as effectively as possible. If the CI becomes aware that there is a potential risk to their ability to be objective, they should immediately notify their organization’s management. Their organization’s management will be able to determine 2021 Version 1.1 14 | P a g e  Certified Investigator’s Manual the best course of action. The CI should take the same action if they think others may perceive them as not being able to be objective. When the rules of objectivity are not appropriately applied, the quality of the investigation will be compromised. Individuals have the right to have investigations completed as objectively as possible. Objective investigations are critical to upholding the mission of ODP to support Pennsylvanians with intellectual disabilities and autism to achieve greater independence, choice, and opportunity in their lives. In addition, if investigations are not conducted objectively, we may fail to protect the people we support from harm in their everyday lives. All humans and therefore all CIs have bias. A CI must be self‐aware of their bias during all aspects of the investigation and consult with the appropriate person(s) at their organization to help assess how bias might be affecting their investigative decisions. Key Indicators of Quality: Objectivity 1. CIs do not investigate any incident for which they may directly be involved or a perceived direct involvement by the CI. a. Avoid investigating any incident for which the CI is a potential witness. b. Avoid investigating any incident for which the CI is responsible for rendering, managing, or monitoring services for the victim(s). 2. CIs do not investigate any incident for which they have a close relationship with the target, victim, or other key participants in the incident. a. Avoid investigating CI’s family members. b. Avoid investigating CI’s friends. 3. CIs do not investigate any incident for which the target is considered in a supervisory, managerial or other position of authority/power over the CI. Speed Another critical value associated with rules of evidence that quality investigations are judged by is speed. The rules of evidence related to speed exist because of what is considered the half‐life of evidence. The half‐life of evidence refers to the fact that all evidence changes over time, and that the more time that passes, the more opportunity there is for any given piece of 2021 Version 1.1 15 | P a g e  Certified Investigator’s Manual evidence to change or be altered. The properties, characteristics, and conditions that a piece of evidence has today may become different tomorrow. If asked the exact details of what happened 5 minutes ago, most people could recall with fairly accurate detail. But what about 48 hours ago? How accurate would the details of your day be after two days have passed? Our memories fade. And in the lives of the individuals we serve and the people who support them, details can fade quickly against the demands of everyday life. This is one of the reasons why it is so important to conduct our investigations timely in order to prevent losing evidence. Rules of Speed for an Investigation 1. The first witness interview must occur no more than 24 hours after assigning the CI the investigation. 2. CIs should visit the alleged scene of the incident as soon as possible after the investigation assignment to identify, gather, and preserve evidence that could disappear or be altered. 3. All initial witness interviews should be completed within ten days of assignment. 4. The entire investigation (including the Administrative Review) must be completed as quickly as possible, but not to exceed 30 days from when the incident was recognized or discovered. ODP regulations require that the final section of the incident report, which includes the CIR and Administrative Review, be submitted through the Department’s incident management system within 30 days of the incident being recognized or discovered. Concerning the rule of speed, timeframes should be viewed only as maximum, the outer limits to conducting the investigation. Investigations should be done as efficiently as possible. It is important to note that obtaining and analyzing health‐related documents or other evidence may take several weeks to complete for some types of investigations. The CI may determine that the specific needs of an investigation will not allow the 30‐day submission timeframe of the final section of the incident report through the Department’s information management system to be met. In such cases, the CI should keep their organization informed of delays to the timely completion of their investigation. Notification of an extension is to be made by the 2021 Version 1.1 16 | P a g e  Certified Investigator’s Manual organization responsible for the investigation to the Administrative Entity and the regional office of ODP using the Department’s information management system before the expiration of the 30 days. Speed in an investigation is critical for physical evidence. Delaying the observation of physical evidence and preservation through photographs can result in the evidence changing or even disappearing. Sometimes physical evidence is altered unintentionally due to a person’s actions, often because of prior training that conflicts with rules for preserving evidence in an investigation. For example, cleaning the site before the CI arrives at the scene alters and possibly destroys potential evidence that may be crucial to the investigation. Another example about physical evidence and the speed of an investigation is the potential that individuals may deliberately alter or destroy physical evidence to redirect blame or to protect another person(s). When an investigation is delayed, more opportunity arises for this type of behavior to occur. Witness testimony may also be altered or lost when investigations are delayed. Witness memories change or fade over time. As humans, we can replay memories in our minds. As a result, those memories can inadvertently be altered over time, causing the actual experiences/observations to be changed. Discussing the incident with others can also inadvertently cause memories to change, as well as intentionally colluding with another person to “get the stories straight.” Collusion is the secret agreement between two or more people for a fraudulent, illegal, or deceitful purpose. Because of these factors, it is critical to initiate witness interviews as close to the time of assignment as possible. The first witness interview must occur no more than 24 hours after assigning the CI the investigation. The CI must complete all initial witness interviews within ten days of assignment. As noted previously, timeframes should be viewed only as the outer limits to conducting the investigation. Interviews should be done as efficiently as possible. Some incident investigations identify problems related to clinical or direct support staff failure to communicate and document information such as progress notes, shift logs, behavioral data, etc. The failure of staff or a consultant to perform their jobs correctly may directly contribute to or may even cause the incident under investigation. Delays in an investigation give people the opportunity to “cover their tracks” and get the necessary paperwork in place that 2021 Version 1.1 17 | P a g e  Certified Investigator’s Manual otherwise would not have been there if the investigation began sooner. Delaying an investigation also provides an opportunity for documents to disappear or to be altered. In an investigation, one cannot predict with certainty that any of the above will occur. Yet, the consequences are significant when delays happen. Allowing the question to be raised about whether evidence may have been altered or changed because of delays in the investigation creates more significant uncertainty than an investigation initiated and completed within reasonable time frames. In addition to the possibility of evidence changing over time, there are other reasons why it is important to complete every task in an investigation as quickly/efficiently as possible. One of these is that, typically, it is not until the Administrative Review stage of the investigation that corrective actions and other changes aimed at keeping people safe are developed and implemented. If there are actions/changes that can help keep people safer, it is important that they are identified and implemented as soon as possible. The CI adhering to the rule of speed/timeliness helps to facilitate this. A critical incident investigation may be conducted when law enforcement, protective services, and/or licensing investigation is being conducted. The fact that another investigation is conducted in no way affects a CI’s obligation to utilize the principle of speed. The only time that a CI should deviate from the investigative timeline is when the other investigative body specifically requests the CI to pause their investigation or to delay a particular step so as to not interfere with the other investigation, or when the CI and the other investigator decide to collaborate with their investigations, resulting in a delay. When working with victims of trauma, it is important to reduce the amount of times that the person is interviewed for the investigation. The CI should work with law enforcement and other investigators to coordinate efforts to interview the victim. This could result in delay or a break from the typical process for the CI. This is ok as it is being done for a logical trauma‐informed investigative reason. The CI must document the change of investigative methods and an explanation as to why it occurred. In these situations, the CI should keep in regular contact with the other investigator(s) to know when they can complete their investigation. The fact that someone else is investigating does not eliminate the need for all investigative steps to be conducted by the CI as timely as 2021 Version 1.1 18 | P a g e  Certified Investigator’s Manual possible. Additionally, the CI should document all attempts at contact with the other investigative body, including the reason for any deviation from the investigative timeline. Key Indicators of Quality: Speed 1. The CI visits the alleged scene of the incident as soon as possible after assignment. 2. The CI completed the first witness interview within 24 hours of assignment. 3. The CI completed all initial witness interviews within ten days of assignment. 4. The final section of the incident report is submitted through the Department’s incident management system within 30 days of the incident being recognized or discovered. Thoroughness The thoroughness of an investigation relates to the level of detail generated by the CI throughout the entire process of identifying, collecting, preserving, analyzing, and presenting evidence. All potentially relevant evidence should be identified by the CI, collected and/or preserved, considered in the evidence analysis process, and presented in detail in verbal reports and the CIR. Producing an investigation considered thorough can be measured in several different ways. These are addressed throughout this manual. Some examples of how thoroughness is judged in an investigation include preserving evidence, collecting evidence, analyzing evidence, and writing the CIR. Preserving Evidence  Could the physical evidence at the scene of the incident have been altered, unintentionally or intentionally, before the CI arrived? If so, how does this affect the steps in the investigation?  Did the CI take photographs of physical evidence properly? Did the CI take enough photographs to tell the story about all the relevant physical evidence available for the incident?  Did the witness have the opportunity to collude about the details of an incident? If so, how does this affect the questions that need to be asked during the interviews? Collecting Evidence  Did the CI visit the scene for physical evidence? Were diagrams of the scene used when helpful to understand what happened?  Did the CI identify all witnesses with potentially relevant evidence and interview each individually? 2021 Version 1.1 19 | P a g e  Certified Investigator’s Manual  Did the CI personally review relevant documents for evidence of what happened with the incident based on all of the relevant evidence? Analyzing Evidence  Did the CI consider all relevant evidence in their analysis and reconciliation process?  Did the CI explore any changes to the stories being offered by the victim or other witnesses?  Did the CI use a preponderance standard of evidence to establish what was more likely than not to have occurred in this incident? CI Sarah is investigating a report that a staff member stabbed an individual with a pencil while sitting next to them during a transport in the program’s van. When interviewing the witnesses, Sarah uses a diagram of the van. Each witness not only states where each person was on the van but marks on the diagram as well. From the diagrams, Sarah is able to identify that, while something happened to the individual that needs to be further investigated, the staff person was not sitting next to the victim and in fact was three rows behind making it not very likely that they stabbed the person with a pencil during the transport Writing the CIR  Did the CI thoroughly examine conflicting evidence so that the Administrative Review Committee can effectively weigh the evidence to make a final determination?  Did the CI write a summary of the evidence that adequately describes all relevant direct and circumstantial evidence available to answer what most likely happened in the incident?  When providing information regarding the investigation methodology, did the CI document logical exceptions to the investigative practices detailed in this manual?  Did the CI prepare a report that is clear, concise, and logical with appropriate detail to tell what most likely happened based on the evidence? 2021 Version 1.1 20 | P a g e  Certified Investigator’s Manual When conducting investigations, the CI may come across situations in which they cannot collect a specific piece of potentially relevant evidence. For example, the CI may decide not to interview an individual’s friends if doing so may alert the friends to the fact that the individual is a service recipient when they did not previously know that, thus jeopardizing the individual’s confidentiality. In situations in which the CI is not able to collect a piece of evidence, the CI should document their reasons and continue their investigation, being as thorough as possible in identifying, preserving, and collecting all other potentially relevant evidence. This way, they will still be able to develop a comprehensive understanding of the incident even in the absence of that evidence. The absence of specific evidence does not negate the CI’s responsibility to conduct an investigation that is as thorough as possible. The CI’s attempts to collect the evidence, even when unsuccessful, should be described in the CIR. At times, a critical incident investigation will be conducted when law enforcement, protective services, and/or licensing investigations are being conducted. The fact that others are investigating in no way affects a CI’s obligation to conduct a thorough investigation. When evidence is not available to the CI due to another investigation, the CI should document this and refer to the other investigator’s report as documentary evidence. It cannot be assumed that other investigators have thoroughly examined the scene for physical evidence, collected the appropriate testimonial evidence, or obtained relevant documentary evidence. Different investigative entities have different goals and even different investigatory techniques. The CI is responsible for utilizing thorough evidence collection techniques for the incident investigation. This responsibility includes remaining in regular contact with the other investigator(s) to determine when the CI can complete their investigation and thoroughly documenting all attempts at contact with the other investigative body. Key Indicators of Quality: Thoroughness 1. The CI created an investigatory plan. 2. The CI documented deviations from the processes outlined in this manual. To include, at a minimum, an explanation of: a. A witness was not interviewed in person. b. A witness was not interviewed. c. A victim was not interviewed. d. The first witness interview was not able to be completed within 24 hours of assignment. e. All initial interviews were completed within 10 days of assignment. f. The CI was unable to visit the alleged scene of the incident. g. Target(s) were not identified. h. Identified targets were not interviewed. 2021 Version 1.1 21 | P a g e  Certified Investigator’s Manual i. There was not any physical and/or documentary evidence identified. 3. The CI conducted follow‐up interviews, when applicable. 4. The CI collected and/or preserved relevant evidence and summarized it in the CIR. 5. In the CIR, the CI told the story about what is more likely than not to have happened, based on the relevant evidence. 2021 Version 1.1 22 | P a g e  Certified Investigator’s Manual Chapter 4: Investigative Planning Gather Information about Initial Incident Report Establish Ideal Investigation Timeline Create Investigatory Question Identify witnesses Create Initial Plan Order of Witness Interviews Weigh community interview considerations Investigative Identify and prepare for communication needs/preferences of witnesses Plan Have supplies (tool kit) available Create List of Possible Evidence to Collect Determine how evidence will be preserved Identify parts of investigation that could cause trauma or discomfort Check on safety of victim Implement Review activities of intake and preservation Review incident with reporter Investigative Begin and complete Initial Witness Interviews within prescribed time frames Plan Preserve testimony from all interviews in written format Conduct Background and Follow‐up Interviews Collect/preserve Physical Evidence Collect Documentary Evidence Modify Investigative Plan as Needed Identify concerns Document Investigative Document deviations from ideal investigation processes Plan and Document choices made; such as who was interviewed; pictures that were/were not taken Methodology Ensure investigative plan logic is documented in the CIR 2021 Version 1.1 23 | P a g e  Certified Investigator’s Manual Developing an Investigative Plan An investigation must be systematic, which means it must be planned and not haphazard. Immediately upon assignment, the CI should develop a plan for a systematic approach to the investigation. While no two investigations are alike, starting with a general plan helps organize the investigator’s work. The CI should identify the required tasks that need to be completed, generally in a sequential manner, for the investigation, and they should be aware of how each task in the plan leads to or supports other steps in the process. At the very least, the investigative plan should include:  Gather Information about Initial Incident Report.  Establish ideal timelines for the process, including the steps to be taken and projected completion dates for each step and for the entire process.  Create the investigatory question(s) based on the description of the incident contained in the initial incident report.  Identify the witnesses to be interviewed. Potential witnesses may be identified in the Incident Report or other documents, or mentioned by other witnesses.  Plan the chronology of witness interviews; identify potential witnesses and classify them according to their relationship to the incident. o In general, the victim or initial reporter is interviewed first (many times the victim is the reporter.) When considering who to interview first, the CI should prioritize the needs of the victim. The victim holds critical details about the incident that could be forgotten if significant time passes. Interviewing the victim first also allows the CI to check on their safety, improve their chance of accurate recall, and reassure them that the incident is being taken seriously. o The CI may choose to interview the reporter, who is not the victim, first when they require a greater understanding of the incident report to get more background information about the incident and formulate a clear investigative plan. This decision and the investigative‐based reason to interview the reporter first should be documented in the CIR. o After the victim (and initial reporter as needed) is interviewed, the CI's next group of interviews should generally be of witnesses with direct evidence, since memories of an incident can change quickly as time lapses after the incident. Witnesses with circumstantial evidence should come next as they can provide critical information that will assist with the last interview, which is the target(s). The reason for the target(s) being last is that knowing what questions to ask during this interview is often heavily dependent on the evidence gathered previously by the CI. 2021 Version 1.1 24 | P a g e  Certified Investigator’s Manual o The CI may decide it’s their best course of action to talk with other witnesses before the victim. For example, the victim may not be immediately available; the victim may be experiencing trauma associated with the incident; there is a need to coordinate interviews with other investigative entities; or the CI may need to immediately limit opportunities for witnesses to influence one another’s testimony. This decision and the investigative‐based reason to interview the reporter first should be documented in the CIR. o Background interviews can be conducted whenever the CI recognizes a need for them. However, when scheduling background interviews the CI should take into consideration the importance of interviewing the victim, initial reporter (as needed), and witnesses involved in the incident as soon as possible in order to maximize the chance that they will be able to convey accurate and complete memories of the incident.  Put together an investigative toolkit before starting the investigation. The kit should contain items that the CI will need during their investigation. Items for the tool kit include but are not limited to a digital camera and body chart forms to preserve physical evidence, witness statement forms to preserve testimony, and pen and paper to take investigatory notes or create diagrams.  Create a list of possible evidence to collect, including specifics on how the evidence will be collected and preserved.  Anticipate parts of the investigation that could cause further trauma or discomfort to the victim or other witnesses, or that could cause risk to the victim or other witnesses. Develop a plan to address how evidence can be collected without causing trauma or risk to the victim or other witnesses, and with minimal disruption to their lives. Conducting joint interviews with other investigative agencies is an example of minimizing the impact of the investigation on the individual. Refer to the Trauma, Trauma‐Informed Interviewing, and Trauma and The Investigation Process portions of this manual for further guidance.  Weigh the necessity of interviews in the community (e.g., at an individual’s place of employment) when they risk violating the confidentiality of the individual. The CI should base investigative steps in the community on what is respectful to the individual's everyday life. The CI should give close consideration to the individual’s privacy when deciding on the location and time of all interviews in the community. Allow for flexibility to plan. The need to modify the investigation plan may occur based on the progress and feedback received during the investigation. Modifications may include:  Attending to the timing of the investigation, being aware of delays that could lead to the destruction of evidence or loss of key witnesses.  Determining whether new leads must be investigated.  Filling gaps and oversights in the CI’s plan. 2021 Version 1.1 25 | P a g e  Certified Investigator’s Manual  Reporting incidents that may not have previously been reported. The CI may uncover evidence of other incidents or misconduct. The CI is required to report an incident that has not been previously reported. Separate incidents cannot be “rolled” into the same investigation unless they are directly related to the incident being investigated. Writing the Investigatory Question The investigatory question serves two purposes in the investigation: 1) provide a general guide to the parameters of the investigation and 2) assist the CI in avoiding tunnel vision. The allegation, not the question, is what gets confirmed or unconfirmed by the Administrative Review committee in the final determination. The investigatory question is simply an investigative guidance tool. It can help the CI and others who review the investigation remain aware of and focused on the goal of the investigation, which is to as fully as possible understand what happened related to the reported incident. While there may be circumstances needing multiple investigatory questions, most investigations require only one properly written investigatory question. When a CI believes there is a need for multiple investigatory questions, they should review the incident allegations to ensure that they are not actually attempting to investigate multiple incidents that require separate investigations. The investigatory question should be generic as to the allegation. If possible, it is:  Linked to the victim (includes their name)  Anchored to a general time frame  Linked to the general location of the incident The right question anchors the investigation to the victim, the date of the incident, and general location without creating the tunnel vision. Tunnel vision is a natural human tendency that leads CIs to focus on specific theories, then select and filter evidence only through those preconceived theories. Tunnel vision includes ignoring or suppressing evidence that does not fit with the preconceived ideas. To decrease the chance of tunnel vision, the investigatory question should not include the name of the target(s), specifics of the allegation, reported motive, or specifics of time or place. A properly written investigatory question follows this format: What happened to [insert name of victim] at [insert general location of incident, if known] on [insert date of incident, if known]? 2021 Version 1.1 26 | P a g e  Certified Investigator’s Manual The investigatory question is the only part of the investigation process in which the CI should err on the side of being more general, rather than more detailed. The more details that are included in the investigatory question, the more chance there is of tunnel vision occurring. If the CI is not completely certain about the incident date or location, or if the incident had no direct adverse effects on the victim (such as an allegation of neglect through not maintaining required level of supervision, during which the individual experienced no harm or stress), the investigatory question should be written as follows:  If the date of the incident is not known, the date of the incident report should be used instead. Example: What happened to Mary at her home that led to the incident report of July 1, 2021?  If the incident location is not known, any reference to location should be left out of the investigatory question. Example: What happened to Mary on July 1, 2021?  If the CI feels it is more appropriate, the word “to” can be replaced with the word “involving.” Example: What happened involving Mary at her home on July 1, 2021? 2021 Version 1.1 27 | P a g e  Certified Investigator’s Manual Chapter 5: Physical Evidence Physical evidence is defined as things themselves (e.g., an injury, weapon, a piece of furniture, environmental condition, etc.) or the absence of things, as well as the spatial relationship among things that have the potential to describe or explain an incident under investigation. Physical evidence includes: 1. The presence of things such as injuries or objects 2. The absence of things such as injuries or objects 3. The spatial relationship between things As previously stated, all physical evidence should be identified and preserved as quickly as possible during an investigation. When creating the investigative plan, a preliminary assessment about potential physical evidence and how to preserve it should be made from the incident report. Injuries Whether or not an individual has sustained injury is very relevant in the ODP incident management system. If an injury exists, the CI will need to assess how the injury was sustained and whether or not it is related to the incident under investigation. For example:  The type of injury sustained could help determine how an incident occurred.  The appearance and size of an injury can be critical to assess how the injury occurred.  The presence or the absence of an injury could help determine what happened. CI’s Role Related to Injuries When appropriate, the CI should attempt to observe, document, and photograph the injury or absence of injury. Photography should be done as soon as possible. Even if no immediate injury is identified, it is recommended the CI observe, document, and photograph the absence of the injury. In the absence of a visible injury or in instances of injuries such as bruises that don’t become fully visible right away, the CI should return to take additional photographs after allowing for some time for the injury to present itself fully. If there is an injury on a genital area of the body or a part of the body that requires the person to disrobe, or if, for any reason, showing it to the CI could be traumatic to the victim, the CI should not ask or agree to see it. This shows respect for the individual’s privacy and reinforces the importance of privacy boundaries. Instead, the CI can rely on the evaluation of a physician through medical documentation, representation of the injury on body charts, and/or interviews. CIs should always ask permission before taking pictures of an individual. If the CI is unsure if 2021 Version 1.1 28 | P a g e  Certified Investigator’s Manual the individual consents to having a picture taken of an injury (or absence of injury), the CI should not take the picture. When conducting witness interviews, it is also appropriate to focus questions on observations made by the witness regarding the victim’s physical condition before, during, and after the incident, but before any medical interventions and/or physical examination. Physical Environment The environment where incidents occur, including the location, physical layout, properties (e.g., temperature, visibility, noise, weather conditions, etc.), and spatial relationships among things (e.g., furniture, other items in the environment, even people) may provide crucial evidence in an investigation. Photography Preserving the condition of physical evidence through photographs is an important aspect of the investigation process. Photographs can be vital to telling the story of what happened by preserving the presence or absence of physical evidence. When photographing the victim, it is important to always ask their permission to take pictures. If they refuse to allow for photographs, the CI should consult their supervisor or the person within their organization who oversees investigations for guidance on how to proceed with preserving the physical evidence. The CI should also document the refusal to be photographed in the Certified Investigator Report (CIR). The first step in photographing an injury is for the CI to take a photo that shows the entire body and face of the individual. Photographing the individual’s face provides verification of who the photos are of. If possible, the location of the injury should also be in this photo. The CI should then take close up photographs of the injury. If evidence is available in an individual’s genital region or requires the individual to partially undress for the picture to be taken, as noted above, the CI should not ask or agree to see or photograph the area. Instead, the CI should use documentation of an examination by a certified medical professional or testimonial evidence from a witness who saw the evidence instead of taking photographs. If the documentation or witness interview is not sufficient, the medical professional who conducted the examination should be interviewed. If photographs were taken by someone other than the CI (e.g., a medical photographer or law enforcement officer), these pictures could be used as evidence for the investigation. Using the initial incident report for reference, the CI should consider taking photos of any 2021 Version 1.1 29 | P a g e  Certified Investigator’s Manual physical locations and/or objects identified in the report that would help tell the story of what happened. For example, suppose the report indicated the individual tripped and fell on a piece of rug that wasn’t tacked down properly. In that case, the CI should observe the flooring material at the location and take photos regardless of whether it has wall‐to‐wall carpeting, a throw rug, or a wood floor with no rugs over it. When photographing the location of the incident or specific pieces of evidence in that location, the CI should begin by taking photographs of the entire incident scene from various perspectives/angles. They should then take progressively closer photographs from those perspectives, culminating with the piece of evidence. Taking photos in this way can assist the CI in visualizing what a witness has observed when the witness describes what they observed from a specific spot in the scene. As photos are taken, the CI should keep a photo log identifying each photo, adding notes including the date, time, and any other relevant information. The vast majority of cameras used to take evidence photos today use digital technology. The CI should follow agency protocol for storing investigation photographs and keeping them on a secure storage device with the case file. Diagrams After completing the taking of photos, a diagram of the environment where the incident occurred is recommended. Diagrams are the CI’s most effective tool to demonstrate spatial relationships, distance, and movement and are a tool that can assist in interviewing witnesses. Diagrams do not need to be to scale, yet at the same time, the diagram that is created should be clear. Diagrams are beneficial tools to help witnesses describe what they observed or experienced. Therefore, the CI can use a diagram of the incident location and body charts in interviews. If the CI creates the incident location diagram before the interview, they should only draw non‐ moveable features of the location. During the interview, the witness will add the locations of people, furniture, etc. Objects and people represented in a diagram need to be identified by use of a key. This will allow anyone reviewing the diagram to understand it. At the end of the interview, the diagram needs to be signed and dated by the people involved in creating it, the CI and the witness. Since diagrams and photographs are used to preserve physical evidence, they are entered in the physical evidence section of the Department’s information management system. 2021 Version 1.1 30 | P a g e  Certified Investigator’s Manual Chapter 6: Testimonial Evidence Interviewing witnesses, including victims, individuals, targets, staff, physicians, family members, etc., at its simplest level, is the process of two people communicating and sharing information. Interviewing is an art and not a science, but several guidelines can assist the CI in being an effective interviewer. Providing Testimony The ability of a witness to provide testimony on the topic of an investigation is based on their ability to make observations and being provided the opportunity to communicate those observations effectively. Regarding the witness’ ability to make observations, it is essential to remember that the observation is based on the senses: sight, hearing, taste, touch, and smell. The CI should never assume someone cannot be a witness. An individual can have one or more senses impaired and still be a witness for an investigation into a critical incident. The CI is responsible for assuring the witness is given the opportunity to effectively communicate memories of their experiences/observations during the interview. To do this, a CI may need to provide accommodations to meet the witness’ communication needs by providing sign or spoken language interpreters, communication boards, etc. The witness is thereby able to communicate in the most effective manner possible. This approach will help improve the testimony's overall quality and minimize the risk that the testimony is seen as compromised or tainted. To best provide these accommodations, the CI must research their communication needs before the interview. The CI must understand that people can communicate without the use of words. Information suggesting that a witness does not use words to communicate (is “non‐verbal”) is not sufficient justification for not interviewing the witness. In addition to the accommodations, the CI must assess other communication preferences of the witness. For example:  The victim may have certain times of the day that they are better able to communicate than others.  The individual may have non‐verbal gestures that have specific meanings only understood by those who know them well.  All witnesses will use a specific set of vocabulary. Definitions and meaning of words are not necessarily consistent and can vary based on local colloquialisms, cultural diversity, educational level, professional jargon, etc. Documentation of Communication Abilities The CI is responsible for providing documentation in the CIR related to an individual’s communication abilities. Suppose a CI attempts to interview an individual and is unable to 2021 Version 1.1 31 | P a g e  Certified Investigator’s Manual obtain testimonial evidence due to the individual's communication abilities. In that case, the evidence must be in the CIR that explains the individual's communication abilities. Tip for communication ability documentation in the CIR:  The term “non‐verbal” does not mean that the person is unable to communicate. Significant changes in a person’s usual demeanor are a form of non‐verbal communication that can indicate something has occurred. Cultural Awareness Every person communicates differently based on their personal communication history and their cultural communication patterns. In communication, cultural differences can arise in definitions of words, body language, amount of detail in answers, views of authority, and perspectives on caregiving. All of these differences can result in the inaccurate recording and analysis of testimony. A CI needs to be aware of communication differences that may be occurring due to cultural differences. When the CI believes that there is a cultural difference in the communication patterns during an interview, the CI should practice cultural inquisitiveness and ask the individual about their unique communication patterns. For example, if the CI notices that the person is not maintaining the eye contact that is typically expected, the CI should not assume that the person is lying. The CI should ask the person a question like, “I notice you are not looking at me when you answer my questions. Can you tell me why that is?” It is also appropriate for the CI to ask questions that address potential cultural differences as part of their investigation. For example, the CI can say, “Please tell me your definition of ‘bad care’.” or “What was your intention by using the term?” The CI should avoid overgeneralizing cultural differences and assuming cultural communication “rules” apply to everyone from that particular culture. Many people teach that individuals from an Asian culture do not utilize the same level of eye contact used in the United States, especially to someone in “authority.” This idea is highly dependent on what part of Asia an individual is from, Hong Kong, rural China, Vietnam, etc. It is also very dependent on the acculturation level of the person, like first‐generation vs. third generation. In other words, cultural patterns of communication are very individualized. Just because 2021 Version 1.1 32 | P a g e  Certified Investigator’s Manual someone appears to have a specific cultural background, the CI should not assume how they will communicate. As noted, the CI needs to identify when there may be cultural differences in the interview and then address them through questions that help clarify whether cultural differences are affecting the interview. This assessment can be done in the initial interview but will often occur in the follow‐up interview after the CI has had a chance to review the evidence from the initial interviews. Trauma The CI should be sensitive to the fact that many individuals and their staff have experienced trauma. In general, trauma can be defined as a psychological, emotional response to an event or an experience that is deeply distressing or disturbing. When loosely applied, this trauma definition can refer to something upsetting, such as being involved in an accident, having an illness or injury, losing a loved one, or going through a divorce. However, it can also encompass the far extreme and include severely adverse experiences, such as rape or torture. Trauma‐Informed Interviewing Another guiding principle for critical incident investigations is the use of trauma‐informed approaches. At the core of a trauma‐informed approach is the idea that every person should be treated in a way that is sensitive to their trauma, whether that trauma has been experienced recently, or whether it was experienced in the person’s more distant past. The U.S. Office of Justice Programs states that investigators should not be surprised if victims:  Deny they are a victim  Show fear of what will happen to them  Show fear of the investigator  Change or vary their story or how they tell the story  Become distracted, angry, reluctant, or concerned about their own needs  Express fears about safety and privacy, particularly for the interview  Do not remember all details A trauma‐informed approach is gradual and nonthreatening. It focuses on showing empathy and decreasing anxiety. The CI must be patient and willing to end an interview if the person shows signs of being traumatized by questions or is becoming frustrated by their inability to recall details. When working with trauma victims, the CI must be willing to do follow‐up interviews to gather their testimony over time. The CI should examine their approach to all aspects of an interview through the lens of being trauma‐informed. How the CI asks the questions, what the CI is wearing, where the interview occurs, and who else is in the vicinity can all be things that can potentially affect the interview 2021 Version 1.1 33 | P a g e  Certified Investigator’s Manual with a victim of trauma. The CI should think through, in their investigative plan, how to ensure a trauma‐informed approach and adjust when someone shows signs of trauma during an interview. It is almost always best practice not to interview the victim of trauma multiple times and make them retell their story over and over to different professionals investigating the incident. If the CI can collaborate with law enforcement and other investigators to minimize the number of times the victim needs to tell their story, the CI should do so. If this happens, documentation must exist as to why the CI is not conducting the investigative step following the standards of evidence collection provided in this manual. One night when Ron was sleeping, he woke up to one of the staff on top of him. That is the only thing Ron can recall. When Ron wakes up the next morning, he complains of rectal pain. Upon medical evaluation, the physician believes that Ron was sexually assaulted. When interviewed Ron is not able to recall specific details about what happened. Research has shown that sexual abuse is often a traumatic incident for a person. We are only beginning to learn about the effects of trauma on the senses. We know even less about the effects of trauma on people with intellectual disabilities and autism. CIs must be aware of the effects of trauma on a victim’s ability to recall and not discount their story if they cannot recall what happened after a traumatic incident. Trauma and the Investigation Process After an incident, responses and services can be stressful and confusing for most people. All of this can influence to what extent a victim is willing and/or able to participate in an investigation. CIs should be mindful of the following4:  Participation in investigations can be difficult for victims who have experienced trauma because the services, investigations, law enforcement, and legal action(s) throughout the process can bring up the traumatization experience. When victims see the people or pictures of the places or scenes of incidents, it can bring up the feelings and sensations 4 Adapted from Enhancing Victim Advocacy Through a Trauma-Informed Approach By Olga Trujillo, JD & Patricia Moen Tip Sheet #3 August 2019 2021 Version 1.1 34 | P a g e  Certified Investigator’s Manual associated with those traumatic events. This, in turn, can cause flashbacks, in which a victim/survivor re‐experiences the incident. o This re‐experiencing may cause feelings of panic, anger, disorientation, physical pain, grief, or numbing and shutting down. These traumatic reminders are referred to as “triggers.” When a person experiences a “trigger” of a traumatic event, they may become unable to participate in the investigation process fully. The experience may require the CI to extend interview timelines, arrange for additional interview times or even halt the interview process if the individual is experiencing a level of re‐traumatization that outweighs the benefit(s) of obtaining their testimony. This is not to say that a CI should assume that all individuals will be unable to participate in an investigation due to trauma triggers. Each case should be evaluated, and care must be taken to afford each individual the opportunity to participate in an investigation to the fullest extent possible.  Credibility determinations of whether the victim is truthful are often made by people with positions of authority in our systems, without recognizing the impact of trauma on victims. A great deal of our system response is based on proving that something did or did not happen. Most people’s lives aren’t like that. When an individual reports an incident or provides witness testimony about an incident, their credibility is constantly being assessed. This situation can be very stressful and may lead an individual to refuse to participate in an investigation and/or recant their statement. a. The problem of making accurate credibility assessments is that determining whether a person is truthful is often based on the CI’s or other professionals' sense of what a reasonable person can remember or how they believe a victim should look or sound when talking about life‐threatening events. However, traumatic events can alter how a person thinks, talks, and even remembers an incident. b. To survive, victims may dissociate, allowing them to experience the incident without actually feeling the full effect. For example, someone who experiences a near‐deadly car crash caused by a driver under the influence may dissociate, so they don’t feel all the pain and terror associated with the incident. The victim may talk about the car accident in a flat and scattered manner. Without knowing dissociation is typical for trauma, a CI or other professional can find it hard to believe a victim who is showing signs of trauma, which may make it hard to believe a victim is credible. What Can CIs Do to Help Victims Experiencing Trauma?  If you are interviewing individuals in a space over which you have control, review the space and decorum: o Ensure it is not chaotic, overstimulating, and noisy. 2021 Version 1.1 35 | P a g e  Certified Investigator’s Manual o Make sure the space you meet with victims is not too small or crowded with furniture. o Make sure the victim has easy access to the door and feels they can leave at any point. o Ensure victims are clearly and kindly directed to your office or meeting room when they arrive for the interview.  Take time to develop a rapport with the victim before you have them discuss or recount traumatic experiences.  Talk to victims about what helps them when they are triggered or reminded of traumatic experiences.  Incorporate a what‐to‐expect discussion into every meeting with the victim. Predictability, to the extent possible, helps alleviate a victim’s fears. o Explain and walk victims through the process of your interview, so they know what to expect. Talk them through the process step‐by‐step. o When arranging the interview, go over details such as where you will meet, who they will talk to, the purpose of the discussion. As appropriate, have this material available in many formats: e.g., a pamphlet, a graphic, a simple step‐by‐step instruction page, available in different languages as needed. o Remind them that they can ask for breaks and show them the location of restrooms or how they can get something to drink or eat if needed. o Be clear about the limitations of your role. o Be clear about the role you can play. o Agree on a simple cue to let you know they are feeling overwhelmed or triggered. Types of Investigative Interviews In any investigation, there are generally three types of interviews used to obtain testimony from potential witnesses. The three types to be explored in this chapter are initial incident interviews, background interviews, and follow‐up interviews. All of these interview types require basic guidelines for the interview process. Basic Guidelines for the Interview Process The purpose of the incident interview is to allow a witness to communicate memories of their experiences or observations relating to a specific environment over an identified time period. Conducting interviews that gather thorough testimonial evidence is a critical skill CIs must develop. Even before meeting with a witness to conduct the interview, there are several guidelines CIs should follow to prepare for the interview:  Collect information regarding the communication needs of the witnesses. The 2021 Version 1.1 36 | P a g e  Certified Investigator’s Manual Individual Support Plan is a place to find this information for people receiving services. Talking to people who know a witness is another way to learn about their communication needs, regardless of whether the witness is someone receiving services, staff, family members, etc. Provide proper accommodation of communication needs (e.g., professional interpreters and communication devices such as picture books and other technology used to facilitate communication).  Conduct interviews individually with witnesses, not in groups. The general rule is that witness interviews are conducted on a 1:1 basis. Not only can group dynamics or peer pressure discourage or even suppress responses. More importantly, the CI runs the risk that witness testimony will be seen as unreliable.  Does the witness (individual[s] receiving services and/or employee[s]) require a third party to be present? If so, make arrangements to accommodate needs. Some examples of third‐party representation may include: o A person the individual receiving services feels safe with (e.g., staff person, family member, etc.). Care must also be taken to ensure this person is not the target or any other potential witness for the investigation. o A union representative for employees with the right to representation when the representative is not a target or any other witness to the incident.  Interview in a private place if possible.  When relevant, prepare diagrams for use during the interview to help document the described movement, spatial relationships, distance, etc.  If you are planning to interview several witnesses in one day, schedule sufficient time to complete each interview and allow a cushion of time between each interview for writing any notes that the interview prompted. This cushion of time will also help prevent one witness from coming into contact with another when arriving for or leaving the interview. This decreases the potential for retaliation from one witness toward another.  Maintain the appearance of objectivity and neutrality. Convey to all witnesses that the organization takes the allegation seriously.  Clearly explain the purpose of the interview. The CI may inform witnesses about why they are being asked questions as long as it doesn’t violate the confidentiality of the reporter or another witness.  Be cautious about providing any details of the incident. Doing so could cause the witness to incorporate those details into their memories of the event, thus making their testimony less representative of what they truly observed or experienced.  Do not promise confidentiality but maintain it. You can tell the witness that you will only share information with management or others who need to know.  Generally, do not tell the witness being interviewed what was said by other witnesses. Exceptions to this rule might involve follow‐up interviews where there is a need to reconcile conflicting testimonial evidence or interviewing the target. Do not provide if 2021 Version 1.1 37 | P a g e  Certified Investigator’s Manual sharing that information will put the victim or another witness at risk of harm. If you must share information obtained from other witnesses, it is important not to name the witness who gave you the information and convey it in very general terms.  Do not discuss your own opinions or conclusions.  Do not make promises to witnesses, such as offering a bargain or favor in exchange for testimony (e.g., change of shift or immunity). Avoid at all costs any oral agreements.  Focus on using nonverbal communication in assisting your interview process. For example, the SOLER method is an effective nonverbal communication structure to use in interviewing: o S‐Sit squarely o O‐Open posture o L‐Lean forward o E‐Eye contact o R‐Relax 