Investigators who attend our training seminars learn the value of conducting a Behavior Analysis Interview (BAI) as a reliable means of eliminating innocent suspects and identifying the guilty suspect during the course of an investigation. During this structured, 30-40 minute non-accusatory interview, the suspect is asked both investigative questions and specialized behavior-provoking questions. The latter questions are designed to be answered differently by suspects who are innocent of the issue under investigation as opposed to those who are guilty. The suspect's responses to the behavior provoking questions serve as the primary basis for rendering opinions of guilt or innocence.
However, once an investigator has probable cause to take a suspect into custody, is there any benefit to conducting a BAI? Experience indicates that there is. First, probable cause does not mean guilt beyond a reasonable doubt. In other words, occasionally suspects are arrested for crimes they did not commit and the BAI can be used to identify innocent suspects. Furthermore, if the suspect displays deceptive responses during the BAI the investigator will have greater confidence in the suspect's guilt when going into the interrogation. In addition, consider the following benefits of conducting a non-accusatory interview prior to any accusatory interrogation:
1. The investigator can establish a rapport and trust with the suspect which is often necessary to persuade the suspect to tell the truth during an interrogation.
2. Suspects are less guarded when engaged in a non-accusatory conversation and are more likely to reveal opportunity, access or a motive to commit the crime.
3. The investigator can gain insight into the suspect's possible motive to commit the crime which will help to formulate an interrogation strategy.
4. The investigator can ask questions to which the suspect may lie, e.g., that the suspect knew the victim, paid back rent with cash, was at the crime scene. These documented false statements can then be used to great advantage later during the interrogation.
5. The investigator can ask a bait question to test possible evidence to later be used as a bluff during the interrogation.
In fact, the only circumstance we can think of which warrants the investigator skipping the interview and directly engaging in an accusatory interrogation of a suspect is when the evidence of the suspect's guilt is so overwhelming that it would be irrational to ask the question, "Did you commit this crime?"
Once a suspect is taken into custody the investigator faces some unique issues relating to the interview. The first is that a custodial suspect must be advised of his Miranda rights, and give a knowing and voluntary waiver of those rights prior to any questioning. Second, because the suspect is in custody, there is an underlying implication that he is guilty of the crime. This, of course, can make it difficult to conduct a non-accusatory interview.
With respect to advising a custodial suspect of his Miranda rights, we offer the following recommendations:
1. The officer who takes the suspect into custody should not give the Miranda advisements and, therefore, should not ask the suspect any questions about the crime. The reason for this is at the time a suspect is taken into custody he is often defensive and guarded. If he is advised of his constitutional rights in that frame of mind, he is more likely to invoke his rights. Of course, any statement the suspect volunteers in the absence of questioning is admissible as evidence.
2. The investigator conducting the interview/interrogation should be the person to give the advisement. This arrangement not only means that only one person is completely responsible for Miranda advisements but also only one person has to testify concerning the Miranda waiver and the defendant's confession.
3. Introduce Miranda casually. It is not required that the Miranda warnings be given in a threatening or intimidating manner. It is often beneficial to ease into the warnings in a conversation similar to the following:
"Joe, I've been assigned this case and I would like to hear your side of things but before I can ask you any questions about (the cars missing from the dealership), I need to remind you of your rights which you probably already know. You've got the right to remain silent; anything you say can be used against you; you have the right to a lawyer; and if you can not afford a lawyer one will be provided free." After an appropriate pause to permit the suspect to respond, he should be told: "I would like for you to talk to me about this matter [specifying the issue under investigation]. Okay?"
If the suspect agrees to talk to the investigator, the formal Miranda warnings would then be given. This is typically a standard form in which the four warnings are read out loud to the suspect who initials each warning. The suspect then signs the bottom of the form indicating his knowing and voluntary waiver of rights.
If the suspect waives his Miranda rights, the investigator then faces the second hurdle which is to approach the suspect in a non-accusatory manner. As the following guidelines illustrate, the key is for the investigator to not initially bring up any evidence against the suspect. If the suspect asks about evidence or possible charges the investigator should offer an evasive response, e.g., "I'm still waiting for some of the evidence to be evaluated"; "I don't have the authority to make charging decisions."
1. Start off by identifying the issue under investigation and then ask a series of non-threatening background questions.
"Joe, before we talk about those missing cars, let me just get some background information. Could you spell your last name for me? What is your first name? What do most people call you? What is your current address? How long have you lived there? Are you presently employed? Etc."
2. Ask the Reason for the Interview question in the following manner: "Joe, tell me everything you know about those cars that are missing from the dealership."
3. Ask the History/You question: "Joe, at this stage of the investigation I can't share all of the evidence with you and I am still waiting for some of the evidence to be analyzed. One thing I can tell you is that I will be completely truthful with you and I'm going to ask that you be completely truthful with me as well. So before we go any further, let me ask did you steal any of those cars?"
4. From here the investigator can conduct a standard BAI, e.g., ask the Knowledge, Suspicion, Vouch, Credibility, Attitude, etc. questions.
5. If the suspect is aware of the evidence against him, e.g., one of the stolen cars was found in his garage, later during the interview the investigator should ask the suspect questions about that evidence. For example, "Joe, how is it that one of those stolen cars ended up in your garage?"
6. If the investigator has incriminating evidence that is unknown to the suspect, e.g., a neighbor witnessed the suspect drive down the street in the stolen Honda Civic, this evidence should not be revealed during the interview. Rather, the investigator should ask questions designed to document the suspect's denials, e.g, "Have you driven a 2007 Honda Civic on your street?"; "Have you been inside a 2007 Honda Civic on your street?"
7. Incorporate questions designed to profile the suspect for the interrogation, e.g., "Under what circumstances would you steal a car from the dealership?"; If you were the investigator on this case and I stole those cars, what could I say to you for you to understand why I did this?"
In conclusion, the relatively short period of time required to conduct a Behavior Analysis Interview is well spent even when the investigator is quite certain of the suspect's guilt such as when a suspect is taken into custody. By conducting the BAI not only will the investigator increase the likelihood of obtaining a confession from the guilty suspect but it may also allow the investigator to identify an innocent suspect who may be caught in a web of circumstantial evidence or who lied to protect a loved one, or to conceal some unrelated act of wrong-doing. Prior to a custodial BAI, the suspect must waive his Miranda rights and, for the suspect's behavior to be validly interpreted, the investigator must conduct the interview in a non-custodial manner. This can be accomplished by simply not bringing up the evidence against the suspect or, if the suspect is already aware of the evidence, to ask for his explanation for the evidence.