“I Don’t Recall” – Part 2
Getting More Out Of This Common Response In Public Safety Interviews
Part 1 of this series provided some context and perspective about why “I don’t recall” responses seem more common in public safety investigations—and why investigators should not rush to attribute a high volume of such responses to bad faith. In Part 2, we explore some practical tips and techniques to facilitate recall, elicit more accurate information, and better distinguish between a bona fide lack of recall and selective memory. While most of these tips can be used in any investigation, this blog post centers on some of the unique features of public safety investigations.
Do Your Homework before the Interview. TV shows and movies about public safety employees tend to focus on the action and do not usually give you a sense of how much of the job is administrative paperwork and report writing. However, the paperwork part of public safety work is a boon to investigators—both as a tool for refreshing recollection and for probing the legitimacy of “I don’t recall” responses.
Investigators should consider requesting and reviewing any potentially relevant incident reports, radio/dispatch logs, body camera footage, briefing agendas/notes, duty and assignment rosters, daily observation logs, and other documentary evidence prior to interviews. When an interviewee says they do not recall something, investigators can show these records to the interviewee to see if they trigger recall. An investigator’s review of these documents can also give the investigator a sense of how memorable or noteworthy an event or detail might have been. This can inform how hard an investigator should press on “I don’t recall” responses. Additionally, investigators can often gain insights into an interviewee’s credibility by tracking which details the interviewee might omit from their responses or narratives of events.
Beat around the Bush. The quality of an interviewee’s recall often improves over the course of an interview. Usually, the more an interviewee talks about a topic or event, the more their mind is transported back to the relevant time frame, and the more they begin recalling. For this reason, it is often worth the time investment to talk about the circumstances and details of issues that might be peripheral to the issues you are actually interested in discussing. For example, if you want to ask about a specific call for service that took place in the afternoon, consider asking about calls for service that took place immediately before or shortly after the call about which you really want to ask.
Similarly, when faced with an “I don’t recall” response, instead of pressing the issue immediately or abandoning a line of questioning, consider asking open-ended questions that solicit narrative responses and permit the interviewee some latitude to provide answers about which they may not be certain, for example: “Can you tell me about any details you think you do recall about [topic/event], even if you aren’t necessarily 100% certain as you sit here now?” Since most public safety work occurs outdoors, even asking about sensory perceptions about the weather or temperature can prompt recall. For example, “Do you remember it being particularly cold while you were speaking with him? The weather report said it was about 32 degrees at that time.” These kinds of questions get interviewees talking, and the more the interviewee gets talking, the more they tend to remember. Additionally, it is much easier to fact-check, “I’m not positive, but I think I issued the reprimand because he was never answering his radio,” than to fact-check, “I don’t recall specifically.”
Establish Temporal Timeposts. Another way to transport an interviewee’s mind into the relevant time is by identifying notable events that were roughly contemporaneous with the time frame in question. For example, asking about when the relevant events occurred in relation to events like shift changes, crew changes, critical incidents, and newsworthy events (like pandemics or protests) can help you bookend a timeline. From there, you can then probe the interviewee’s confidence in progressively narrower time frames, ideally in relation to events you can establish through documentary evidence. For example, “Do you think he said it before or after the big warehouse fire that day?” or, “Did she resign before or after the holidays?” or, “How long had he been doing that before you switched to graveyard shift?” Anything that keeps interviewees talking is usually productive and helps bring the temporal bookends closer together.
Move on, But Come Back. In formal or professional settings, public safety employees sometimes default to a terse or clipped communication style that intensifies when their responses are questioned. This is understandable for anyone who has been cross-examined in court, as is the case for many in law enforcement. Thus, when pressed about a lack of memory, interviewees will sometimes shut down or escalate their commitment to an “I don’t recall” response. When you detect this, take note of which question drew that reaction, and then transition your questioning to a more familiar or comfortable topic for the interviewee. The new topic need not necessarily be directly relevant, but keeping the witness talking can help build rapport while you consider another approach. Later in the interview, when the interviewee may have forgotten their earlier reticence, you can come back to your original questions from a different angle.
Explore Causes of Memory Issues. The more seemingly memorable an event is, the more important it is to consider and explore the potential causes for a purported lapse of memory. If an interviewee only has a fuzzy recollection of critical details, consider probing how confidently they recall minor, peripheral, or more favorable details. For example, “I know you don’t recall the specific words you used, but do you recall what he said that might have provoked you to say whatever it was you said?”
If the interviewee’s responses appear to demonstrate a pattern of selective recall, you can, and should (non-confrontationally), invite them to respond to that impression, ideally toward the end of the interview so as to preserve rapport. For example, “As we have been speaking, I notice that you recall some details better than others, and there might be a good reason for that, but can you help me understand why that might be?” The interviewee may or may not have a good response, but it is still important to ask. The interviewee might disclose that they recently went on a call for service involving a traumatic event, or they may have recently lost a coworker in the line of duty. In such cases, consider seeking training on trauma-informed interview techniques such as inviting interviewees to provide narratives without feeling pressured to do so in a strict chronological order.
For Respondents: Clarify a Denial Versus Lack of Memory. When it comes to Respondent interviews, it is crucial to distinguish between faded memories and firm denials. One way to address this is by asking, “When you say you do not recall that, do you mean that it is possible it happened, and you just do not remember one way or the other as you sit here now? Or do you mean that you do not remember it because it did not happen?” Asking these kinds of questions is even more important in some California jurisdictions where a second interview could entitle a Respondent public safety officer to receive certain information or evidence in advance of a second interview that could negatively impact the integrity of the investigation.
While interviews of public safety employees are not necessarily more difficult than other kinds of interviews, they do call for a very specific set of skills and techniques that are too numerous and nuanced to fit into a single blog post. The experienced Attorney Investigators at VMLC and in its Public Sector Practice Group have developed these techniques over the course of hundreds of interviews and investigations. They leverage this expertise to avoid the many procedural pitfalls that await even seasoned investigators who lack the requisite experience in public safety investigations. When your public sector investigation absolutely has to be done right, call the subject matter experts at VMLC.
