By John B. Edwards
Retired Special Agent in Charge
Georgia Bureau of Investigation
“Integrity in the practice, illustrats credibility in its purpose”
Law enforcement executives, managers and seasoned investigators all recognize that there are specific areas of operation in police work that demand certain domain competences due to the high stakes risk or measured application of strategy and tactics involved. Without such domain competency the requirement for the contextual understanding in the operational realities of the job is lost, and the course forward may become infected with pitfalls and minefields.
My fear is that over the last few years law enforcement has experienced a drain and evaporation of experienced managers and investigators. Further, as a renown police trainer put it. “Rather than applicant pools we now have applicant puddles in law enforcement recruitment.”1 Moreover, often through necessity we are forced to fill positions with those not well versed or trained in the complexities and dynamics of these type cases. Such that may lead to mistakes that create adverse consequences that range from the deterioration of institutional credibility to the change of agency leadership.
My intent is to share a structured framework of proactive policy and operational practices to provide insight and understanding to prevent, mitigate and reduce the risk of management failures and investigative mistakes that may result in adverse consequences during case initiation, case progression and case disposition.
This article serves as a primer for utility in the responsibilities incurred before, during and after the investigation of sensitive cases surrounded by a political environment. These cases usually are specific to the investigation of a public official.
Often, the best crystal ball is a rear-view mirror and the value from the actual management and investigation of multitudes of these cases has been both insightful and educational. This article is written through the lens and perspectives of both investigators and managers through the filter of practical and actual experience, grounded in operational reality and guided by professional practice. Central to this article’s creation, development and context
1 Swindler, L.J. Director for the South Carolina Criminal Justice Academy. Conversation on 21st Jan. 2019
is the proactive strategies and tactics learned, tested and used time and time again. These competencies have been developed from layers of contextual understanding gleamed from conducting and supervising these type investigations and training managers in these cases for over 35 years.
These cases are controversial by nature, and provocation may pressure reevaluations of the totality of the facts and circumstances involved. A critique may result in the revision of the methods or manners used in the investigation. Often, these type cases not only influence and affect the suspected officials or institutions being investigated but also the agency, its leadership, investigators and prosecutors who conduct the inquiry and manage the case.
The current political environment is complex, polarized, and can become volatile over any issue at any time. This illustrates the importance of responsible investigative acts, based upon objective, specific and articulable facts probative of the act, incident or event investigated with a clear nexus to the violation of a criminal statute. Criminal investigations of public officials inherit great scrutiny at all levels of government. Often in these cases motivations are afoot by many different people from many different places and positions. These factors can be political or personal in nature. Research has supported a negative relationship between political behavior and organizational outcomes. 2
First, political tactics contrast with the straightforward influencing tactics of open discussions and sharing information among decision-makers. Often such involves restricting the information flow. Therefore, managers may make decisions depending on incomplete information which could lead to disappointing outcomes. Second, political decision processes are divisive and therefore time-consuming. They may lead to delay for the decision, with a possible loss of windows of opportunities toward the success of the investigation. This is problematic in competitive and rapidly changing environments where decisions should be made in a reasonably expedient time range that could result in damaging hindsight evaluations from later critique of the investigation’s effectiveness. Third, political behavior may lead to an incomplete understanding of the environmental realities or circumstances, creating a situation where decisions result from processes that are less likely to consider the consequences. Decisions rooted in political processes may exclude other feasible alternatives because they conflict with powerful individuals’ interests, undermining the likely success of investigative decisions.
Bottom line situational and environmental awareness must be constructed by objective facts and credible information over subjective assumptions or end game notions that often accompany politicized driven ideology or thought process. This represents the difference in
2 Elbanna, S. (2006). Strategic decision-making: Process perspectives. International Journal of Management Reviews. 8, (1) 1–20
cognition paradigms between a disastrous intuitive driven and bias-based thinking over a successful evidence based driven metacognition process. The term Metacognition is best described as “thinking about your thinking, while you are thinking, to make your thinking better.”3
There is also a certain momentum for embellishing, exaggerating, and spreading of total rumors with no factual basis whatsoever. Some of this information is unintentional, while some reaches the level of pure propaganda. Much attention results from the media reports and public interpretations from narrow and sparse facts.
Author Salman Rushdie provides great context, “We have a dysfunctional relationship with reality, in the information age, truth and untruth exist at the same level of authority and it is difficult for people to judge which is which.”4 The public demands and deserves a thorough investigation that uncovers all facts and circumstances for their ultimate judgement at the conclusion of the case. Often, not just what we found, but how we went about it will become very important and meaningful.
A reoccurring theme in the process is the methods and manner of fact-finding and how we do it. This simple and basic element serves as the foundation to build the case that provides the evidence to draw the conclusions to base momentous decisions, often under difficult or adverse circumstances. This illustrates the tremendous importance of how we do our job within the context of the totality of the allegations, facts and circumstances available and the law that applies.
There can be no prejudgments or assumptions conveyed in these investigations. The framing of issues or how they are described and communicated has a tremendous influence in the credibility of the investigative process. Accurate framing is essential to communicating and arriving at the shared realities in these type cases. Leadership, investigative staff and prosecutors must adhere to 6 (six) rules for the objective framing of issues.5
- Remain sensitive to and manage context
- Define the situation in the most objective and specific terms
- Apply ethics
- Interpret and evaluate uncertainty
- Design a response from the deconstruction of the facts and evidence guided by a critical thinking process
- Control spontaneity in both thought and communication
3 Paul, Richard, Willsen, Jane, & Binker, A. J. A. (1993). Critical thinking: what every person needs to survive in a rapidly changing world (Rev. 3rd ed.). Santa Rosa, CA: Foundation for Critical Thinking
4 Rusdie, S. (2017) Fareed Zakaria, Inside Public Square CNN Interview November 19th, 2017
5 Fairhurst, G.T. (2011). The Power of Framing: Creating the language of Leadership. San Francisco: Jossie-Bass
Equally important is that the investigation never outrun the prosecution. Disciplined investigatory process must remain under the umbrella of law and in the realm of active prosecution. Objective and articulable legal predicates to justify an investigation must be in place, approved and supported by the prosecutor with the authority and jurisdiction. The prosecutor needs to be more than a skilled technician and legal tactician. They must also be prudent, careful, and pragmatic. They must be able to see both “the forest and the trees.” Above all, they must have the habit of good judgment — that is, a combination of: Values; practical wisdom; personal integrity; and, insight into human nature.6
Prosecutors are required to follow the law in connection with their forecast of success or failure in the prosecution in the case. They must determine if a crime has been committed within a particular statute, and if the evidence exists to prove that person committed the crime. There are acts by individuals that are morally and ethically wrong but not against any law. There are acts committed by people that are against the law, but not to the gravity within the context of facts to be prosecutable. There are some issues that may be best handled by the public at the ballot box than by the prosecutor in the jury box. Finally, the prosecutor must give weight to their chances to prevail at trial. Remember, the young Oliver Wendell Holmes, the future Supreme Court justice, who tried to refute Plato, during undergraduate school at Harvard when his professor Ralph Waldo Emerson answered, ”When you strike at a king, you must kill him.”7 People of magnitude are judged by Jurors who give them that status and often respect them and, or their roles and responsibilities while in it. Investigators must remember the exemplary prosecutorial advice I received many years ago from my mentor, a former police detective, Mercer Law School law review editor and long-term District Attorney for the Atlantic Judicial Circuit, Dupont K. Cheney who would say, “Edwards, It isn’t what you want, it’s what you’ve got that wins cases.”
Accountability to the law, public, and professionally accepted law enforcement roles and responsibilities under policy are paramount. Equally important is the reality that everything done will later be analyzed, evaluated, scrutinized, and tested through an absolute open and transparent review of investigative structure, decision making, procedures, processes, systems and functions. Competence and confidence in what we see and interpret, what we do and how we do it connect to an architecture for case success or case failure.
6 Greenberg, H. A.B.A. The Prudent Prosecution of Criminal Abuses of the Public Trust: PUBLIC CORRUPTION CASES: A PROSECUTORIAL PERSPECTIVE 1-8 www.americanbar.org/content/dam/aba/directories/roli/raca/asia_raca_mr_greenberg_public_corruption.pdf
7 Bell, M. (1990) Review of Habeggers, Henry James and the Woman Business. Nineteenth-Century Literature 45, (3), 392-395
Central to the issue is the investigating agency’s responsibility and obligation to conduct an accurate and credible preliminary assessment that develops information necessary for agency heads and prosecutors, to determine if a formal investigation is merited. Such is required as a cornerstone of the investigation. Then a structured process is required along with investigators and supervisors who possess the domain competencies to identify and understand the contextual features within and throughout the course of the investigation.
Agencies rely on policy and procedure as a means for efficiency and effectiveness while providing a means and manner to set a professional practice based on the achieving an expected and best outcome practicable. Specific and comprehensive policies support all investigators and managers in performing routine functions and establish consistent practices in decision making and internal and external operations. Central to formulating sound policy is that such policy portrays the practical operational realities universally accepted in our craft, is used as a training platform for officers and is enforced by supervisor oversight and mentorship. Policy serves its agency managers and investigators well, especially in these type cases.
A profoundly insightful and meaningful perspective can be found from the Inspector General’s Review of the FBI investigation during the 2016 Presidential election:
“One of the things that I tell people all the time, after having been in the Department for almost 24 years now, is I stress to people and people who work at all levels, the institution has principles and there’s always an urge when something important or different pops up to say, we should do it differently or those principles or those protocols you know we should—we might want to deviate because this is so different. But the comfort that we get as people, as lawyers, as representatives, as employees and as an institution, the comfort we get from those institutional policies, protocols, has, is an unbelievable thing through whatever storm, you know whatever storm hits us, when you are within the norm of the way the institution behaves, you can weather any of it because you stand on the principle. And once you deviate, even in a minor way, and you’re always going to want to deviate. It’s always going to be something important and some big deal that makes you think, oh let’s do this a little differently. But once you do that, you have removed yourself from the comfort of saying this institution has a way of doing things and then every decision is another ad hoc decision that may be informed by our policy and our protocol and principles, but it’s never going to be squarely within them.”
— Deputy Assistant Attorney General George Toscas, United States Department of Justice
It is paramount for leadership to follow its agencies established procedures and policies even in its highest-profile and most challenging investigations. By adhering to these principles and norms, the public will have greater confidence in the outcome of the agency’s decisions, and leaders will better protect the interests of law enforcement and the dedicated professionals who serve these institutions.8 Policies are paramount in providing a clear indication of an agency’s willingness to follow “guiding principles” across time, space, and context.
What makes these cases different and why?
1.) The restraint of investigative freedom: Investigator autonomy is limited with a requirement for investigatory discipline and management oversight. Because these cases are narrowly tailored and limited in focus and scope. Focus is what we examine or concentrate on and scope determines how in-depth or far we go. Central to this concept is not only what we investigate, but how we investigate it. Roles and responsibilities are critically important throughout every aspect of the investigative decision-making process. We not only want to ensure the proper procedures and rules are followed to not deny anyone justice, we equally want to ensure the oversight is in place to fulfill our most basic duty to “do justice.” 9 Proactive prosecutor involvement buy-in and support is essential to the initiation, course taken and disposition of each case.
2.) Complexity and contextual understanding: These cases have influences and forces that interconnect and tied to an ecosystem of systems, functions and issues that present situations where complications, vulnerabilities, ambiguities and uncertainties are common. These cases require specificity in the content of information for credibility in the context of information. Assumptions absent a reliable basis of knowledge from the facts will create disastrous results and unintended consequences. The contextual features and subjective fact-patterns involved often demand a view through the prism of multiple and diverse perspectives to ensure objectiveness and reasonableness. Razor sharp focus on context must be blended with a devoted sensitivity to the nuances surrounding the contextual richness to make the most accurate interpretations to comprehend the realities surrounding the case.
3.) Scrutiny: These cases, by their very nature will draw the most interest and attention to detail. As a result, the investigation, the leadership and agency integrity are central to the credibility, confidence and outcome of the investigation. Adherence to the highest principles and norms are mandatory. Ideology, emotions, different beliefs and access to accurate information may become the foundation for polarized views. The requirement for an unbiased mindset and objective practices of all investigators and their leadership are tremendously valuable toward the perceptions of veracity, credibility, utility and purpose of the investigation. To that end, transparency is the gold standard. At the
8 Office of the Inspector General U.S. Department of Justice. A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Oversight and Review Division 18-04 June 2018. P-498-499
9 Mosteller, R. (2007). The Duke Lacrosse Case, Innocence and False Identifications: A Fundamental Failure to Do Justice. Fordham Law Review. 76, 1337-1412
conclusion, open records and freedom of information statutes will guarantee full disclosure for hindsight analysis that often avoids the labor associated with the incorporation of the contextual features afoot.
4.) Confidentiality: Insulates the investigation from outside influences that can cause turbulence within the investigation and promotes credibility to constituents and stakeholders outside the investigation who expect legitimacy and trust. Often, there is an outcry and demand for public release and immediate review of investigative results, while simultaneously there is a responsibility to mitigate the privacy concerns of sensitive groups and individuals and ensure the integrity of the investigation for later judicial proceedings. This polarizing tension is amplified by a desire for the media to constantly “feed the machine,” and the lack of patience and trust the community has in a system that has proven itself throughout the years to be not only just, but reliable.10 Proactive measures must be communicated upfront regarding the security of information and the swift and clear adverse consequences for leakers and the improper dissemination of case information. Many times, Grand Jury protocols can insulate the course of the investigation with confidentiality and the agency from outside influences if a Grand Jury is impaneled. In the overwhelming majority of cases, silence must prevail. However, in some cases, a balance must be applied regarding the release of information based on the critical evaluation by the agency head involving agency policy, prosecutor involvement and command staff input in concert with the facts and circumstances of the particular case.
Deviation from the agency’s established procedures and norms and engagement in subjective, ad hoc decision-making creates a tremendous risk to agency integrity and case credibility.11 Central to this concept is the commitment to following the course attached to proper application as it relates to authority, jurisdiction, roles and responsibilities.
In the beginning of any major investigation, incident, or event, law enforcement managers find themselves in the unique position of making order from chaos. Often, much of the preliminary information is inaccurate, complicating the situation. Supervisors must act with the best information available and assign resources for efficiency and effectiveness. To bring organization and structure to an unsystematic environment.12
10 Edwards, J.B. (2016). 2 sides of the equation: Police UOF in the digital video age. https://www.policeone.com/social-media-for cops/articles/172356006-2-sides-of-the-equation-Police-UOF-in-the-digital-video-age/
11 Office of the Inspector General U.S. Department of Justice. A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Oversight and Review Division 18-04 June 2018. P-498-499
12 Edwards, J.B. (2009). The Major-Incident Quadrahedral One Method of Managing Investigations. FBI Law Enforcement Bulletin, 78,(8) 21-23
These investigations require a general blue print to draw specific strategies and viable tactics incorporated into an investigative plan. The plan must be rooted in policy, closely supervised and carefully implemented with the understanding that there must be enough adaptive space reserved for the adaptation to change and uncertainty while sticking to the policy elements that insulate the investigators and investigation from turmoil. The focus of this article is to provide a blue print for that success with four standards of operation and management.
Four Standards for Operations and Management
The first standard is to educate leadership and investigators with the facts and circumstances
The effectiveness of the investigation often depends on the investigative team’s ability to quickly process and complete prioritized leads to swiftly provide answers to the case agent. Uncovering information that establishes clues and generates leads that tailor the focus and scope of the investigative effort are critical issues. Further, investigative teams must be able to locate and interview people quickly to lock individuals into statements to provide the maximum indicia of credibility and reliability; locate and preserve valuable evidence; and obtain and document the most accurate observations and accounts13
This standard requires the investigators to start with the best information possible. For such to occur, the information must be specifically received, and a basis of knowledge applied and tested regarding all sources.
Central to the issue is the question “how does one know?”, source credibility, motivations, and methods need to be examined and all information needs to be documented properly, using either written or digital-recorded statements. Investigators, at this beginning stage of the inquiry, need to independently corroborate sources and information.
All information needs to be digested thoroughly, understood, and completely stored. Central to this digestion is the accurate interpretation of the information by all involved. All the information needs to be verified as proven or possess such facts, under the totality of circumstances to inherit great credibility from this test.
Critical at this stage is the involvement of the prosecutor. Advice, guidance, and counsel from the prosecutor is a necessary component to each consideration in this area. A determination must be made to ensure that the authority exists for your agency to investigate
13 Edwards, J.B. (2005). Focus on investigations: Homicide Investigative Strategies. FBI law Enforcement Bulletin. 74, (1) 11-13
this type case, as well as jurisdiction, and others that may have jurisdiction and authority as well.
After these processes, investigators can form the valuable specific knowledge needed to make intelligent decisions regarding the information afoot. Issues can be framed, and questions formed. The result of this standard is thorough case knowledge which is the cornerstone for prudent, effective, and sound decision making.
At this point emphasis must be made to all involved by leadership (as mentioned earlier) that there will be a zero-tolerance for leaks and consequences must be articulated up-front. All involved must be reminded of the dangers from the improper use of unofficial or non-secure technologies and the importance of objectivity, and the perceptions of any communication made that could later be interpreted through the discovery process. It is profoundly important to maintain and sustain the integrity of the investigation by ensuing that facts and circumstances, leads or results are not disclosed or leaked.
The second standard is to objectively assess, analyze, and evaluate preliminary information
In this area, investigators answer various questions, make objective assessments, and accurately interpret fact patterns. Central to this concept is to establish a basis of knowledge from each and every source. The simple question of how do we know what we think we know is critical to both origin, content and context. Every assumption must be supported by this basis of knowledge or information that must support the conclusion drawn. Paramount to this function and process is the ability of the investigator to formulate thoughtful questions for witnesses and or suspects. Chains of fact are then put together from multiple sources. When blended with other facts, statements, and evidence, this independent corroboration paints a picture and gives a credible forecast of the nomenclature and dynamics particular to the case.
This picture can then be measured in the continuum of cogency, starting with a scintilla of truth and progressing to absolute truth. This continuum starts with possibility, which may evolve to plausibility, probability, or absolute certainty. After the above issues are framed, investigators will test and challenge all issues under a “Totality of Circumstances test”. Central to this analysis will be identification of probable adverse consequences that may arise. The application of this standard yields the formulation of a credible case theory and provides a foundation for mission development to formulate investigative duration, resources and strategies.
The third standard is to effectuate the mission to support case development:
The issues must be defined, and objectives identified to establish the mission of the investigators. The scope and focus of the investigation are defined for maximum effectiveness and efficiency. From these facts, an overall strategy is formed and from that strategy, tactics are agreed upon to accomplish those objectives outlined in the overall strategy.
Parameters are set where investigators have clearly defined boundaries which do not exceed the scope of their authority, jurisdiction, or ethical and professional standards. Parameters must be specific to encompass the focus of the inquiry and the scope or depth of the inquiry as it relates to the mandate from the authority involved, the applicable statutes and law as recognized by the prosecutor with jurisdiction. It is critical that these parameters or boundaries be established up-front and communicated through the case management process as standards of operation.
A case investigative plan will be developed that will outline the above strategy to be followed and tactics that will be used within the parameters set above. This plan will be used as a framework for the investigation to proceed. A tremendous responsibility is on everyone to communicate with each other and for managers to ensure routine oversight in all operations. The result will be sound preparation to initiate the formal investigation.
The fourth standard is the initiation of the formal investigation:
The first order of business is to ensure management is in place for the necessary accountability, direction, and supervision. Next, the appropriate investigator must be selected to act as Case Agent or Lead Investigator, becoming the central clearinghouse for all information while assuming the overall responsibility for the investigation and the case file. The structure or framework for the investigation must be applied, outlining all the organizational methods that will be required and utilized daily.
Protocols are established, giving the investigating officers information necessary for performance, daily work, and results. Methods must be understood fully by all involved and they should be applied soundly to each situation. Roles and responsibilities of all involved, from managers to supervisors to investigators, must be understood and promptly assigned.
An active and on-going intelligence led process must be in place that monitors all pertinent earned media, social media and internet open sources. Such may provide additional context to accurately interpret and understand complex or very contextual issues. Further, such monitoring provides an environment of situational awareness in the case. Additional intelligence analyst assets should be dedicated to investigative research as tactical support of the investigative process.
An information / leads management system should be in place which is understood by everyone and used with 100 % compliance. Secure information technology systems with communication procedures and protocols should be in place for all involved so there is flawless confidential communication throughout the investigation. The investigation must include a regular and on-going process that involves meetings where investigators, analyst and supervisors come together and in an open forum to brief, analyze and evaluate, plan, execute and then debrief each other as to investigative issues and results. Leaders should use this process in conjunction with staff to develop case strategy, identify investigative tactics, allocate resources and follow policy. Investigative notes, memoranda, summary and reporting responsibilities and requirements need to be set so the administrative documentation of the case is completed secure, timely, accurately, and responsible. Not just what is documented, but how and where it is documented is important. Whether written or digital, overt or covert, sworn or non-sworn all come into play.
My experience from working so many of these cases is that many times the allegations were not the basis for prosecution, but the violation came from lies made during the investigative process. An acute awareness for inconsistency and demand for specificity must be sustained by all investigators. Many times, statements that lack the appropriate degree of specificity are open to many interpretations. Interviews must be conducted in such fashion as to “corner” or “lock” people into a “solid” position of what they proport as the truth. Thus, the objective specific facts will defeat the subjective interpretation or opinion later. A lie is difficult to prove without first locking the person into their specific account then eliminating all wiggle room within the context of the totality of all the facts and circumstances in the case. The process being that once a person is “locked” into their statement or account then investigators must identify if they lied and be prepared to prove each component of the lie. Such cannot be accomplished if the statement is not completed by design to eliminate every other reasonable hypothesis but the lie. The facts must defeat the subject’s word to the degree necessary to prove the lie.
Case file requirements need to be set and directed as well as evidence requirements and other administrative responsibilities regarding all aspects of a criminal investigation. Case documentation will always reflect the investigation’s performance, critical evaluation, hindsight assessments and used as the foundation for internal and external critical judgement. A quote from a very experienced and expert investigator in this field says it best, “ensure the investigative reports keep up with the currents from investigative acts and make into timely case file progression.” 14
Finally, leadership, management and supervisory oversight requirements need to be in place and used to ensure the degree of professionalism and accountability necessary for such a demanding case. Such starts with the appropriate staffing and necessary resources and their monitoring and sustained presence. The responsibility for oversight to ensure the distilling of
14 Baker, Dennis. Chief of Special Investigations, Clayton County Georgia District Attorney’s Office. Conversation, January 16th, 2019
specific and articulable facts and their probative utility as it relates to the circumstances in the case must be evaluated on a constant basis by management and the prosecutor.
Case managers are often required to anticipate, define, and solve investigative problems. Several elements characterize these complex problems: (1) numerous complicated linkages among organizational and environmental elements; (2) dynamic and uncertain environments; (3) ambiguity of available information; (4] lack of complete information; and (5) conflicts concerning the outcomes of decisions among interested parties. 15
Usually groups of investigators with diverse ideas, contrary information and different perspectives discuss investigative problems that arise. Discussion and other interaction among leadership and investigators is a necessary means for sharing and evaluating information and ensuing inferences, assumptions, and recommendations. Group decision making techniques must pay particular attention to context and use devil’s advocacy to ensure a critical evaluation of personal assumptions on the part of all group members to support all consensus. The group process is critical to objective and accurate analysis and in gaining commitment to and acceptance of decisions among those who ultimately will be responsible for implementing the decisions. 16
Operationally, leaders must advance the conceptual understanding and the practical applications of the investigative process. Leaders in these type cases must have the skills that are required for the ability to manage emotional reactions to feedback, to carry out effectively the practice of self-reflection, and to enact self-regulatory processes for development.17 Leaders must promote feedback and discussions which are critical to thorough fact-finding. This creates an environment of open dialogue and communication that enables fact integration by bringing the diverse perspectives and ideas of the investigators together then enables reintegration of those perspectives and ideas where they may be considered for the analysis and evaluation to be incorporated into the operational functions of the investigation. This develops the ability to formulate meaning and relevant questions to enhance metacognition18 within the investigative team.
Exemplary leadership must be in place with the character, competence and confidence required to build relationships, solicit feedback, allow adaptive space and critically think. Central to leadership’s role is the absorptive capacity or the ability to value, assimilate and apply new knowledge for learning and problem solving. This absorptive capacity helps the
15 Mason, R, O, & Mitroff, I, I, 1981, Challenging strategic planning assumptions. New York: Wiley-Interscience
16 Schweiger, D., Sandberg, W., & Regan, J. (1986). GROUP APPROACHES FOR IMPROVING STRATEGIC DECISION MAKING: A COMPARATIVE ANALYSIS OF DIALECTICAL INQUIRY, DEVIL’S ADVOCACY, AND CONSENSUS. Academy of Management Journal. 29, (1),51-71
17 Nesbit, P. (2012). The Role of Self-Reflection, Emotional Management of Feedback, and Self-Regulation Processes in Self-Directed Leadership Development. Human Resource Development Review 11(2) 203 –226
18 Schraw, G. (1998). Promoting general metacognitive awareness. Instructional Science 26: 113–125
investigation adapt and evolve in the high-velocity environment by effectively capturing and deploying the investigation’s knowledge-based assets.19
Time must be viewed as a non-renewable resource that exists in a paradoxical window within the investigation where it may be an ally or an impediment depending upon the particularity and meaning of fact patterns. There will be ongoing natural influence and pressure to complete the investigation as soon as possible. This notion is grounded in good reason and purpose. However, great objectivity, insight and analysis must be evaluated within the context of the decision-making process to make the prudent and proper choices as it relates to strategy and tactics and how they blend, alter or affect the standards required in the context of time’s involvement in the best interest of the investigation’s process as it relates to the totality of the case. Finally, it is prudent to note that once the case report has been provided to the prosecutor time pressures shift with the responsibility from the investigatory process to prosecutorial or judicial disposition, if merited by the facts, the law and evidence to support it.
The results are a professional and credible investigation with the aim at finding the truth and the eventual exoneration or prosecution of those involved. Even after the investigation is closed, whether through a court disposition or prosecutors’ administrative closure it will be the focus of open records, freedom of information acts and media or advocacy request. Such demonstrates the complexity and extended shelf life of these type cases and why professional standards of due diligence and care must not be lost as these investigations transcend into the future from the past. What happens at the front end, during or after may be significant for an argument, proposition or used as fuel for controversy or political advocacy.
In conclusion, these basic, simple, and fundamental rules of fact finding are so critically important in a sensitive case. Investigators must not only use their skills, but such must be done in a coordinated effort to ensure information is developed to the utmost level of professionalism while the proper level of scrutiny is applied. Fact-finding should be a deliberately skeptical process that evolves from the general to the specific in nature and is very detailed in scope. Investigators must rely on persistence governed by a qualified patience when working these type cases. Equally important is the sensitivity to exculpatory as well as the inculpatory information and evidence and the thorough and complete progression so that no stone remains unturned to cause ambiguity, confusion or surprise from the later discovery process. Criminal case discovery issues should be the ongoing basis for a proactive mindset dedicated toward objective advocacy rather than subjective confirmation.
In the final analysis, the object of any legal investigation is to find the truth. In the 21st century environment this task is not natural or easy. It first requires definition, then
19 Cohen, W.A. & Levinthal, D.A., 1990, ‘Absorptive capacity: A new perspective on learning and innovation’, Administrative Science Quarterly 39, 128–152.
recognition. Aristotle framed this argument with this quote, “To say of what is that it is not, or of what is not that it is, is false, while to say of what is that it is, and of what is not that it is not, is true.”20 We must consider that “all facts are constituted by mind or what facts there are depends somehow on what we believe or are capable of believing, or that the correspondence relation between true propositions and facts depends somehow on what we believe or are capable of believing.”21 These notions raise the important issue as to what safeguards can be devised to make sure that sanctions without trial are based on an honest search for the truth, and not on the power differential between the state and the accused.22
Once investigators are educated and information is assessed in such fashion to ensure credibility and accuracy, a detailed mission and vision can be put forth to serve as a foundation for a formal investigation, standing on an organized framework of veracity, efficiency, effectiveness, and accountability. This is the essence of our job, intrinsic to the meaning and at the very soul of the purpose that we uphold the constitution we are sworn to follow and serve the trust of our citizens and each other with integrity, dedication and respect.
20 Metaphysics 1011b25
21 McTaggart, J., 1921, The Nature of Existence, Cambridge: Cambridge University Press.
22 Weigend, T. (2011). Should We Search for the Truth, and Who Should Do it? North Carolina Journal of International Law and Commercial Regulation. University of North Carolina. 36, (2). 389-415
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