“I Don’t Recall” – Part 1
A Perspective On Interviews With Public Safety Employees
There is no published data on how frequently interviewees in workplace investigations respond to questions with, “I don’t recall,” or, “I don’t remember.” However, most seasoned investigators would likely agree those phrases are far and away the words they hear most in interviews. Amongst investigators who specialize in public sector investigations, there is a sense that one type of interview tends to elicit more “I don’t recall” responses than any other – interviews of public safety employees. A cynical outsider to the world of public safety might rush to conclude this phenomenon is associated with the “blue code of silence” – a term used to describe a perceived reticence of peace officers to acknowledge or disclose information about a colleague’s misconduct. But, for those of us who previously represented peace officers and fire personnel in workplace investigations, or regularly conduct public safety investigations, we know it is much more complex than that. This blog post offers a perspective and some context about why investigators should not rush to attribute frequent “I don’t recall” responses to bad faith or lack of candor when interviewing public safety employees. The next blog post in this series will offer some practical tips on how to deal with a battery of “I don’t recall” responses.
Peace officers, in particular, are under extra pressure to avoid making material misstatements. There is a saying amongst peace officers and their union representatives that encapsulates the ever-present stakes when peace officers make statements on the record: “You lie, you die.” Due to the practical realities of law enforcement and the court system, retaining a character of honesty is a de facto job requirement for peace officers. This is largely a function of the ruling in Brady v. Maryland, which, in effect, obligates prosecutors to disclose, among other things, information relating to a peace officer’s prior dishonesty. Officers who have previously been found to be dishonest can end up on what is known as the “Brady list,” a designation that will follow them for the rest of their careers. Considering how frequently a law enforcement officer may be the only percipient witness to a crime, if an officer’s testimony will not hold up in court, this severely limits their value as an employee and agent of law enforcement. From the employing agency’s perspective, it rarely makes financial sense to continue paying an officer whose credibility will always be questioned in court, when they could simply hire someone else without the same history.
There are several other characteristics inherent to most public safety jobs that are not conducive to consistently accurate recollection. First, most peace officers and firefighters work unusual schedules and hours, and are frequently called upon to work overtime. The impact on these employees’ sleep schedules, and thus their memories, should not be underestimated. Second, in busier jurisdictions, public safety employees could deal with many calls for service in a single day. While some of these employees’ interactions with each other and members of the public might be uniquely memorable, many become part of an indistinct blur of day-to-day work. While breaking up a bar fight or domestic violence situation would probably be a memorable event for most civilians, for many peace officers, that is just another Tuesday night. Given the sheer volume of similar types of interactions, it is understandable that public safety employees might not feel confident recalling the details of any one specific event. Third, we know that trauma can profoundly affect memory and call for a specific approach when interviewing those affected by trauma.[1] Public safety employees are regularly called upon to respond to extreme circumstances and put themselves in life-threatening situations that are ripe for instilling primary and secondary trauma. Considered together with the passage of time and heightened stakes of a workplace investigation, it is unsurprising that public safety employees might feel more comfortable giving an “I don’t recall” response unless they are confident about the accuracy of their memory.
In conclusion, while a barrage of “I don’t recall” responses should still invite scrutiny, investigators should temper their skepticism with an understanding of the practical realities of working in public safety. The upcoming second part of this blog series will provide tips and techniques that you can use in your public safety interviews to facilitate recall, elicit more information, more accurate information, and better distinguish between a bona fide lack of recall and selective memory. Until then, trust the seasoned attorney investigators at VMLC for all your public-sector investigation needs.
Van Dermyden Makus benefits from the kind of expertise that can only be gained through the collective experience of several thousand interviews. Out team approach means every investigation we conduct benefits from that experience. Chances are, whatever difficult interview (or investigation) issue you are facing, we have dealt with something similar before; if not, we welcome the new challenge.
