An employee has been interviewed and interrogated concerning the issue of falsifying time card entries. At the conclusion of the interrogation the investigator brings in a witness who is told that the employee admitted that he falsified his time card on several occasions in the last six months. However, no written statement is taken from the employee. The employee is terminated for time theft and files a wrongful discharge suit, which also alleges slander, emotional distress and discrimination. When this case goes to court the company has nothing whatsoever in writing from the ex-employee indicating any act of wrongdoing. He is bound to deny acknowledging the time card violations and the result of the trial will rest on the investigator's credibility when he testifies that the subject did make incriminating statements.

Not having a statement signed by the defendant represents a potential nightmare for prosecutors, corporate attorneys and the investigator who will face a rough cross examination concerning his motives to fabricate the incriminating words allegedly made by the defendant. This is especially true in civil suits where the employer's actions were primarily based on believing what the investigator reported were the incriminating statements made by the employee, and not on physical evidence. Furthermore, when the only witness to an oral confession is another investigator the defense may build a conspiracy theory arguing that one investigator is simply covering for the other investigator's incompetence so that they can both keep their jobs.

While an oral confession is legally admissible as evidence, it is much more difficult for the defense to attack a written statement signed by the defendant. When the court has a written document attesting to a defendant's involvement in a crime this not only supports the investigator's testimony that the defendant did confess, but also enhances the investigator's credibility when denying other allegations that may be made relative to the interrogation. On the other hand, without such a signed statement, the investigator has no independent corroboration supporting any events of the interrogation and he will face an uphill battle at trial with each allegation of impropriety.

Let's return to the interrogation of the employee suspected of time card violations. Here is the actual portion of the interrogation where the investigator claimed the suspect confessed:

I: Are you falsifying your time card every day or just every once in a while?"
S: If I did it, it certainly wasn't every day.
I: Good, that's what I thought all along. What is the total number of times you did it during the whole six months that you worked here?
S: If it happened at all it would just be a couple of times.
I: What is the largest amount of time that you got paid for that you didn't really work. Would it be 4 or 5 hours?
S: Absolutely not.
I: What do you think, maybe one or two hours?
S: If I was off on my time it certainly was not by hours.
I: So maybe up to an hour or so.
S: I have no idea.
I: But you were off on your time card on a number of occasions in the last six months, right?
S: I might have been.
The investigator who was brought in to witness the "confession" was told that the suspect admitted falsifying his time card on a number of occasions in the last six months. Acting on that same information, the company decided to terminate the employee. The problem is that this employee never confessed to falsifying his time card. The original investigator, anxious to prove the employee's dishonesty, was the victim of selective listening. He wanted to hear that the employee falsified his time card so when the employee said, "If I did it, it wasn't every day" the investigator believed that the employee had made his first admission of guilt. The investigator either failed to hear or comprehend the employee's qualifying statement, "If I did it."

This employee may or may not be guilty of significant time card violations. All that can be stated with certainty is that he did not acknowledge them during his interrogation. This introduces a final benefit to taking a written statement, which is that it commits the subject to the admissions made during an interview or interrogation. The above mentioned employee would never have written or signed a statement such as,

"During the six months that I worked at XWZ Corporation I have falsified the hours that I worked 6 to 8 times. The first time was in February 2002 when I added 2 hours to my time card. The last time was in June 2002 when I also added 2 hours of time that I did not work. The total amount of time I have been paid for that I did not work would be between 12 to 14 hours. I am very sorry I did this and the reason I did it was because I have not been given enough hours to pay my bills. No threats or promises were made to me to write this and everything I wrote is the truth."

Had the investigator in this case attempted to take such a written statement he would have immediately recognized that the employee had not confessed to time card violations. This may have resulted in further interrogation of the employee or a realization that the employee was not involved in significant time card violations. In either event, the taking of a written statement in this case would have potentially protected the company from civil liability.

The issue arises as to whether a written statement should be taken from every subject who has made incriminating statements. As a guideline, it is prudent to take a written statement anytime the subject's admissions may lead to an adverse impact on the subject, e.g., suspension, demotion, termination, prosecution. It only takes one lawsuit to appreciate the importance of this advice.

In conclusion, our experience has been that about 80% of suspects will readily write out their own statement after they confess. For the remaining 20%, the investigator can write out a statement, which the suspect will read, make any required corrections, and then sign. This procedure generally takes no more than 10-15 minutes and serves three important functions. The first is that it will enhance the investigator's credibility in court when he testifies that the suspect did, in fact, confess. Second, a written statement will assure that the investigator understands exactly what the suspect is confessing to. Finally, the statement will commit the suspect to his admissions, decreasing the likelihood that he will later claim never to have confessed.