How to Properly Seek an Admission of Guilt

Editor’s note: This is an excerpt from the Association’s Fraud Examiners Manual, Third Edition. This article covers the discussion on Interview Theory and Application, pages 3.201 to 3.273.  

An interview is a question-and-answer session designed to elicit information. It differs from an ordinary conversation in that the interview is structured, not free-form, and is designed for a purpose. An interview may consist of only one question or a series of questions.

Question Typology 

The interviewer can ask five general types of questions: introductory, informational, assessment, closing, and admission-seeking. In routine interview situations in which the objective is to gather information from neutral or corroborative witnesses, only three of the five types normally will be asked: introductory, informational, and closing questions.

If the interviewer has reasonable cause to believe the respondent is not being truthful, assessment questions can be used. Assessment questions seek to establish the credibility of the respondent. These questions ask for agreement to matters that are against the principles of most honest people. They are designed primarily to get a verbal or non-verbal reaction from the respondent. From these reactions, the interviewer can decide whether or not the respondent is credible and whether or not it is necessary to proceed with admission-seeking questions.

If the interviewer has decided with reasonable cause that the subject is responsible for misdeeds, the inquiry should be taken to the next level with admission-seeking questions.

Admission-seeking Questions 

A transitional theme is necessary when proceeding from assessment to admission-seeking questions. Part of the purpose of this theme is to create in the mind of the miscreant that he has been caught. Under ideal circumstances, the interviewer will leave the room for a few minutes, saying he must “check on something.” If the interviewer has incriminating documents, copies can be placed inside a file folder and brought back to the interview. If no documents exist, it may be appropriate to fill the file folder with blank paper. When the interviewer returns to the room, the file folder can be placed on the desk, and the interviewer can ask, “Is there something that you would like to tell me about... ?”

If applicable, the interviewer should hand the documents to the respondent and ask for “comments.” Do not introduce the evidence or explain it. In about 20 percent of the cases, the miscreant will admit to incriminating conduct. If not, proceed with the interview.

Purpose of Questions 

Admission-seeking questions have two purposes. The first purpose is to distinguish the innocent from the guilty. A culpable individual frequently will confess during the admission-seeking phase of an interview, while an innocent person will not do so unless threatened or coerced.

The second purpose is to obtain a valid confession. Confessions, under the law, must be obtained voluntarily. The importance of a valid and binding confession to wrongdoing cannot be overstated. The confessor should be asked to sign a written statement acknowledging the facts. Although oral confessions are as legally binding as written ones, the written statement has greater credibility. It also discourages miscreants from later attempting to recant.

Preparation 

The interview should be scheduled when the interviewer can control the situation. It normally should not be conducted on the suspect’s turf, and is best conducted by surprise.

The room where the interview takes place should establish a sense of privacy. The door should be closed but not locked. No physical barriers should prevent the target from leaving. This is to avoid allegations of “custodial interrogation.”

Distractions should be kept to a minimum. Ideally, there should be no photographs, windows, or other objects in the room. Chairs should be placed about six feet part. The accused should not be permitted to sit behind a desk, which could create a psychological barrier between the accused and the interviewer. Notes, if taken during the interview, should be done in a way that does not reveal their significance.

Presence of Outsiders 

It is usually not necessary to inform the subject that he should have counsel present. Of course, this right cannot be denied if the subject wishes to have an attorney present. If counsel is present, you should have an understanding that he will be an observer only; attorneys should not ask questions or object. Other than the subject and two examiners, no other observers usually should be permitted in the admission-seeking interview. If the accused is in a union, a union representative (or a union attorney) may have the right to attend. However, this may present legal problems in “broadcasting” the allegation to a third party. It is difficult to obtain a confession with witnesses present.

Theme Development

People rarely confess voluntarily. People will confess to matters when they perceive that the benefits of confession outweigh the penalties. A good interviewer, through the application of sophisticated techniques, will be able to convince the respondent that the confession is in his best interest.

People generally will not confess if they believe that there is doubt in the mind of the accuser as to their guilt. The interviewer must convey absolute confidence during the interview – even if not fully convinced of the suspect’s culpability. The interviewer must make the accusation in the form of a statement of fact. Accusatory questions do not ask: “Did you do it?” They ask, “Why did you do it?” An innocent person generally will not accept the question’s premise.

People who confess need adequate time to come to terms with their guilt; obtaining admissions and confessions takes patience. Therefore, admission-seeking interviews should be done only when there is sufficient privacy, and time is not a factor. The interviewer must not express disgust, outrage, or moral condemnation about the confessor’s actions. To do so goes against the basic logic of obtaining confessions, which can be summed up as maximize sympathy and minimize the perception of moral wrongdoing.

The interviewer must offer a morally acceptable reason for the confessor’s behavior. The interviewer cannot convey to the accused that he is a “bad person.” Guilty individuals will almost never confess under such conditions. The interviewer must be firm, but must project compassion, understanding, and sympathy to obtain a confession. The interviewer must attempt to keep the confessor from voicing a denial. Once the accused denies the act, overcoming that position will be difficult.

Generally, it is legal to accuse innocent people of misdeeds they did not commit as long as the:

• accuser has reasonable suspicion or predication to believe the accused has committed an offense;
• accusation is made under conditions of privacy;
• accuser does not take any action likely to make an innocent person confess; and
• accusation is conducted under reasonable conditions.

Steps in the Admission-seeking Interview 

1. Direct Accusation
The accusation should be made in the form of a statement, not a question. Emotive words such as steal, fraud, and crime should be avoided during the accusatory process. The accusation should be phrased so that the accused is “trapped” psychologically, with no way out. For example, in an embezzlement case, the interviewer should say, “Our investigation has clearly established that you took company assets without permission.” (Avoid using theft or embezzlement)

2. Observe Reaction
When accused of wrongdoing, the typical guilty person will react with silence. If the accused denies culpability, those denials usually will be weak. In some cases, the accused will almost mumble the denial. It is common for the culpable individual to avoid outright denials. Rather, that person will give reasons why he could not have committed the act in question. The innocent person will react sometimes with genuine shock at being accused. It is not unusual for an innocent person, wrongfully accused, to react with anger.

3. Reasoning
The interviewer may attempt to reason with the accused by presenting evidence implicating him. The interviewer normally should not disclose all the facts of the case, but rather small portions here and there.

4. Establish Rationalization
Once the accusation has been made, it is time for the interviewer to establish a morally acceptable rationalization that will allow the accused to square the misdeed with his conscience. It is not necessary that this theme be related to the underlying causes of the misconduct. It is common and acceptable for the accused to explain away the moral consequences of his actions by seizing onto any plausible explanation other than being a “bad person.”

Note that the theme development explains away the moral — but not legal — consequences of the misdeed. The interviewer is cautioned not to make any statements that would lead the accused to believe he will be excused from legal liability by cooperating.

The questions posed should seek agreement from the accused and should not be confrontational. The interviewer must strike a balance between being in control of the interview and still appearing compassionate and understanding. Again, no matter what conduct the accused supposedly has committed, the interviewer should not express shock, outrage, or condemnation. Fraudsters rationalize their actions in many ways.

Unfair Treatment  

Probably the most common explanation for criminal activity, and internal fraud in particular, is the suspect’s attempt to achieve equity. Studies have shown that counter-productive employee behavior – including stealing – is motivated primarily by job dissatisfaction. The employees feel that “striking back” is important to their self-esteem. Some employees may feel that their efforts have gone completely without notice by the company. As with similar themes, the interviewer should be empathetic and capitalize on those feelings by suggesting to the accused that he is a victim.

For example, “I’ve seen situations like this before. And I think the company brought this on itself. If you had been fairly treated, this wouldn’t have happened, don’t you agree?”

Financial Problems 

Internal criminals, especially executives and upper management, frequently engage in fraud to conceal their true financial conditions – either personal or business. To develop a theme involving financial problems as a motive, the interviewer could say, “I was astonished to find out some of your investments have taken such a beating. I do not know how you managed to keep everything afloat as well as you did. You just did this to stay alive financially, didn’t you?”

Aberration of Conduct 

Many miscreants believe their conduct constitutes an aberration in their lives, and that it is not representative of their true character. The interviewer may establish this theme by the following example: “You have worked hard all your life to get a good reputation. I feel you normally would not have done something like this; it just does not fit unless you felt like you were forced into it. You felt forced to do this, didn’t you?”

Family Problems 

Some people commit fraud because of family problems – financial woes caused by divorce, an unfaithful spouse, or demanding children. Men especially, who have been socially conditioned to tie their masculinity to earning power, may hold the notion that wealth connotes family respect. Additionally, many women commit white-collar crime to meet the needs of their husbands and children. The skillful interviewer may convert this motive to his advantage by saying, “Someone in your position and with your ethics just doesn’t do things like this without a reason. And I think that reason has to do with trying to make the best possible life for your family. I know it would be difficult for me to admit to my family that we’re not as well off as we were last year. And that’s why you did this, isn’t it?”

Accuser’s Actions 

Do not disclose the accuser’s identity if it is not already known. But in cases where the accuser’s identity is known to the accused, it can be helpful to blame the accuser for the problem. The accuser can be a manager, colleague, auditor, fraud examiner, or any similar person. The problem also can be blamed on the company. For example, the interviewer can say, “You know what these auditors are like. They are hired to turn over every stone. I wonder how they would look if we put them under a microscope? Compared to other things that are going on, what you have done is not that bad. Right?”

Stress, Drugs, Alcohol 

Sometimes employees will turn to drugs or alcohol to reduce stress. In some instances, the stress itself will lead to aberrant behavior. A rationalization established by the interviewer could encourage a suspect to open up about his abuses and fraudulent dealings.

Revenge 

Similar to other themes, revenge can be effectively developed as a motive. In this technique, the interviewer attempts to blame the offense on the accused’s feeling that he must “get back” at someone or something. For example, the interviewer might say, “Everyone around here knows that the board has not supported you in your efforts to turn around this company. I would understand if you said to yourself, ‘I’ll show them.’ Is that what happened?”

Depersonalizing the Victim 

In cases involving employee theft, an effective technique is to depersonalize the victim. The accused is better able to cope with the moral dilemma of his actions if the victim is a faceless corporation or agency. The interviewer can rationalize the target’s actions by saying, “It’s not like what you have done has really hurt one person. Maybe you thought of it this way, ‘At most, I have cost each shareholder a few cents.’ Is that the way it was?”

Minor Moral Infraction 

The interviewer in many cases can reduce the miscreant’s perception of the moral seriousness of the matter. This is not to be confused with the legal seriousness. Fraud examiners and interviewers should be careful to avoid making statements that could be construed as relieving legal responsibility. For example, the examiner shouldn’t state: “It is not a big deal legally. It is just a technical violation.” Instead, the interviewer should play down the moral side by saying something like, “I could see myself in your place. I probably would have done the same thing, wouldn’t I?”

Altruism 

In many cases, the moral seriousness of the matter can be reduced by claiming the action was for the benefit of others. This is especially true if the accused views himself as a caring person. For example, the examiner might say, “You have a big responsibility in this company. A lot of people depend on you for their jobs. I just know you did this because you thought you were doing the right thing for the company, didn’t you?”

Genuine Need 

In a small number of cases, fraud is predicated by genuine need. For example, the accused may be paying for medical care for a sick parent or child. Or some other financial disaster may have befallen the miscreant. In those cases, the interviewer can show sympathy to the accused, rationalizing that the perpetrator committed the fraud “just to put food on the table.”

Diffuse Alibis 

Even if the accused is presented with an appropriate rationalization, it is likely that he will continue to want to deny culpability. When the interviewer is successful in stopping denials, the accused then normally will turn to various reasons why he could not have committed the act in question. The purpose of this next step in the admission-seeking phase is to convince the accused of the weight of the evidence against him. Miscreants usually have a keen interest in material that tends to implicate them. Alibis generally can be diffused by displaying physical evidence, discussing witnesses, or discussing deceptions.

Displaying Physical Evidence 

It is common for most guilty individuals to overestimate the amount of physical evidence against them. The interviewer wants to try to reinforce this notion in the way the evidence is laid out to the accused. The physical evidence – usually documents in fraud matters – generally should be displayed one piece at a time in reverse order of importance. In this way, the full extent of the evidence is not immediately known to the accused. When the accused no longer denies culpability, the interviewer should stop displaying evidence.

Discussing Witnesses 

Another technique for diffusing alibis is to discuss the testimony of witnesses. The objective is to give enough information about what the witnesses would say without providing too much detail. Ideally, the interviewer’s statement will create the impression in the mind of the accused that many people are in a position to contradict his story. The interviewer again is cautioned not to furnish enough information to the accused so that witnesses are identifiable.

Discussing Deceptions 

The final technique is to discuss the accused’s deceptions. The purpose is to appeal to the accused’s logic, not to scold or degrade. This technique is sometimes the only one available if there is little physical evidence. As with other interview situations, the word lying should be avoided. For example, the interviewer might say, “Here is the situation: you know what you have done, and so do I. I can understand it is difficult for you to admit, but if you continue to deny what you have done, you will just make the situation worse. You understand that, don’t you?”

6. Present Alternative
After all alibis have been diffused, the accused normally becomes quiet and withdrawn. Some individuals in this situation may cry. If so, be comforting. Do not discourage the accused from showing emotion. In this stage the accused is deliberating whether or not to confess. The interviewer at this point should present an alternative question, which forces the accused to make one of two choices. One alternative allows the accused a morally acceptable reason for the misdeed; the other paints the accused in a negative light. Regardless of which answer the accused chooses, he is acknowledging guilt.

For example, the interviewer can ask, “Did you just get greedy, or did you do this because of the way the company has treated you?” Whether the accused answers the alternative question with a yes or no, he has made a culpable statement, or benchmark admission. Once the benchmark admission is made, the miscreant has made a subconscious decision to confess. The interviewer should reinforce the confessor’s decision and then make the transition into the verbal confession.

7. Verbal Confession
The transition to the verbal confession is made when the accused furnishes the first detailed information about the offense. Thereafter, it is the interviewer’s job to probe gently for additional details – preferably including those that would be known only to the miscreant. As with any interview, there are three general approaches to obtaining the verbal confession: chronologically, by transaction, or by event. The approach should be governed by the circumstances of the case.

During the admission-seeking interview, it is best to first confirm the general details of the offense. For example, the interviewer will want the confessor’s estimates of the monetary extent of the fraud, other parties to the offense, and the location of physical evidence. After these basic facts are confirmed, the interviewer can then return to the specifics in chronological order. It is imperative that the interviewer obtain an early admission that the accused knew the conduct in question was wrong. This confirms the essential element of intent.

Most confessors will lie about one or more aspects of the offense, even though confirming overall guilt. When this happens during the verbal confession, the interviewer should make a mental note of the discrepancy and proceed as if the falsehood had been accepted as truthful. Such discrepancies should be saved until all other relevant facts are provided by the accused. If the discrepancies are material to the offense, then the interviewer should either resolve them at the end of the verbal confession or wait and correct them in the written confession. If not material, such information can be omitted altogether from the written confession.

The verbal confession should reveal:

• the accused knew the conduct was wrong;
• the facts known only to the confessor;
• an estimate of the number of instances of the offense and the dollar amounts taken;
• the motive for the offense;
• when the offense began;
• when/if the offense was terminated;
• other parties involved;
• physical evidence;
• the disposition of proceeds from the offense;
• the location of assets; and
• the specifics of each offense.

In its entirety, interviewing is a difficult act, seldom mastered without considerable practice. It is crucial that fraud examiners employ the above techniques when seeking an admission. They can aid immeasurably in developing truthful, reliable, and legally valid information.