A proper investigation cannot be done if the investigator is denied access to witnesses, suspects and relevant documents. Timely, unhampered access is essential to the integrity of the investigation. At the same time, investigators need to ensure that they investigate with integrity so that the rights of individuals are protected (see Rights of Individuals in Investigations and Rights of the Accused)and that evidence collected is not tainted and can be admissible in a court of law.
Most systems use the following mechanisms to ensure integrity during the investigative process:
Standard operating procedures
Complaints accepted for investigation are usually processed according to the standard procedures of the enforcement agency. Developing good procedures, and ensuring that all investigators follow them, can help ensure that integrity mechanisms are in place for each stage of the process.
Using standard procedures also limits the discretion of individual investigators for arbitrary or discriminatory actions-- which can be the source of many integrity problems.
Accurate written reports
Accurate files and reports are an integrity essential. Complaints are usually assigned a case number and a written file is kept for each complaint with all of the information and documents collected. Written reports enable the case to be handled by the judicial system, as the evidence collected and analysis done by the investigative agency will be used by other parts of the enforcement system-- such as prosecutors who rely on the investigator's reports.
Comprehensive written reports include the specific offences believed to have occurred, the name of the offender and other information gathered during the preliminary review. Other information which is generally required can include:
...an outline of the objectives of any proposed investigation or enquiries; the scope and focus of the various phases and steps of the proposed investigation or enquiries; the name of the individuals to be interviewed; the information and evidence which are required, and from whom and any other appropriate follow-up measures which could be considered ... in the decision on how to address each specific alleged offence.342
It can be very difficult for a prosecutor to win a valid case if the information collected during the investigation is incomplete or inaccurately reported.
Differentiating between witnesses and suspects
Procedural rights are rights guaranteed by the legal framework, court decisions and enforcement agency regulations. These rights must be respected or integrity of the enforcement process can be jeopardized.
Procedural rights usually differentiate between a witness and a suspect. A witness is a person who has personal knowledge of facts relating to the crime under investigation, and who will testify to those facts in a court. A suspect is a person whom the investigator has reasonable grounds to believe was involved in a violation of the law. Before the investigator starts to gather information, s/he usually decides whether the person is a witness or a suspect. This is to ensure the appropriate procedures are followed and the person's rights are protected. (Rights are discussed in Rights of Individuals in Investigations)
Appropriate interviews
The purpose of an interview is to obtain information and evidence from witnesses and suspects. For the information collected to be admissible in a court of law, the procedural requirements that protect evidence and the rights of individuals must be respected. This means the tone of the interview is professional with the interview focused on the issue. For example, the Elections Canada Manual for Special Investigators requires Investigators to:
... exercise careful judgement in deciding on the most appropriate and effective techniques for the conduct of interviews, having regard to the ethical obligations to act with dignity, fairness, moderation, thoroughness and political impartiality. Special Investigators must avoid personal or private discussions with interviewees which would bring in disrepute the administration of Justice and refrain from asking questions solely to embarrass, insult, abuse, belittle or demean an individual.343
Interviews are usually conducted during business hours and in an appropriate place. An appropriate place is generally not a bar, a home of one of the candidates or in the investigators car.344 To protect the rights of minors, guardians are usually included in those interviews. Care is usually taken to ensure respect for persons of the opposite sex, and these kinds of interviews are not done in secluded areas.345
To avoid misunderstandings, and to be sure that the person being interviewed understands why they are being questioned and who is doing the questioning, investigators usually show proof of identity and explain why they are talking to that person. It is common courtesy to tell the interviewee approximately how long the interview will last. Most systems require consent for interviews, unless the person is a suspect. (For more see Rights of Individuals in Investigations.)
Successful interviews are usually prepared in advance, with a list of written questions for the investigator to refer to so that s/he does not inadvertently forget to ask a pertinent question. A good interview is an important step in building a good case that is can go to court and win a conviction.
Many systems, such as Canada's, tell interviewers to rely on 'gentle persuasion, effective inter-personal skills and professional experience to obtain cooperation' of witnesses.346 For suspects, investigators are told to avoid conduct that could be interpreted as 'oppressive or as offering any perceived inducement of favours in exchange for their cooperation. The existence of either can affect the admissibility of any relevant evidence in court because of doubts concerning the voluntariness of such evidence.' 347
Most systems require suspects to be read their rights and knowingly waive them before a statement is taken. Otherwise, in these systems, the statement is inadmissible in court. This could result in a guilty person going free because there was not enough other evidence to convict. Suspects also usually have the right to have an attorney to be present during an interview. (For more see Rights of the Accused.)
Investigators evaluate witnesses as to their bias in the case. This helps the investigators evaluate the validity of the information collected. According to Elections Canada:
Independent witnesses usually have no personal concerns as a result of any investigation or subsequent legal proceedings. With no affiliation to the individual or political party being investigated, they may be considered more impartial and can therefore be viewed with greater credibility.
Potential biased individuals include the complainant, the subject of a complaint, suspects and all persons who have a distinct interest in the outcome of the investigation or court proceedings. Consequently, their evidence and information may either be prone to colouring, ambiguity and partiality. Biased individuals may also feign poor memory recall or exhibit revealing symptoms of selective memory when asked difficult questions.
Special investigators must carefully assess the impartiality and credibility of biased individuals. They should also identify the basis for any potential bias and seek to counteract that bias through more detailed or more critical questioning of the biased person. Whenever possible, corroboration of potentially biased or unreliable information and evidence should be obtained form other independent sources.348
Sworn statements
The successful prosecution of voter fraud cases can require that critical witnesses (including voters whose voting acts have been co-opted) be examined under oath before criminal charges based on their testimony are filed.
Signed statements can benefit both the witness and the investigator, as written questions and answers protect against misinterpretations and misrepresentations of the interview. It also provides a check on what witnesses say in court if they change their testimony. Most rules of evidence allow a witness to be questioned on inconsistencies with previous statements. A sworn statement can be entered as evidence in most judicial proceedings and is a good idea if the witness is critically ill or may not be available for the trial.
Accurate interview notes
A written record of information obtained during the interview is essential, especially if a signed statement is not taken. The notes from the investigation may be used as evidence for what a person said, what they say they saw, and what they said they did. In court, the defence counsel usually has a right to review and inspect the investigator's notes if the investigator refers to the notes in testimony.
Accurate notes are essential for the integrity of the interview. Accurate notes are complete, with as much full conversation as possible recorded. Notes recorded during, or immediately following, an interview are usually more accurate than notes written later from memory. Most interviewers record exact phrasing, but when this cannot be remembered, they indicate this by using phrases such as 'or words to that effect' to show that it was not a quote. Notes should not be 'sanitized' 349 and most systems require that the original handwritten notes be kept even if they are later computerized.
Some interviews may be recorded electronically, either with a voice or video recorder. This is much more accurate than handwritten notes, but can raise integrity questions if not handled properly. Was written permission for the taping of the interview obtained? Some systems do not allow for taping without permission or a warrant. Does the recording of the interview intimidate or inhibit the interviewee? Would an unrecorded interview have generated more information?
Legal seizure of physical evidence
Obtaining physical evidence to substantiate a case is an important part of the investigation. However, the proper procedures must be followed so that the procedural rights are protected and that any evidence collected is admissible in a court hearing.
For a suspect, the investigator must first advise the person of their rights (see Rights of Individuals in Investigations). Because most legal systems give suspects the right to protect against self-incrimination, they do not have to provide any information or evidence to the investigator. If the suspects understand their rights, and voluntarily provide the requested documentation or information, the investigators should ensure that the suspects sign a statement that they knowingly waived their rights. This ensures that the suspect understands his/her rights, at the same time as it protects the investigators from a suspect later saying they had not been read their rights.
To ensure the integrity of the documents collected, they are usually marked for identification purposes. Most systems give the owner of the documentation an official receipt, and the owner has the right to keep a copy of any papers taken. If a suspect refuses to provide information, Search Warrants could be requested from a court to enable the investigators to search for the evidence.
Investigators usually seek the cooperation of a witness, rather than relying on intimidation or threats to obtain evidence. Witnesses are usually more inclined to cooperate if they understand the purpose of the investigation and why a document is required. This can be explained by the investigator. Falsehoods should not be used. In most systems, witnesses can not be compelled to provide any documents or information without a court order. If a witness refuses to provide the information, the investigators can request a court order to obtain that information.
Protection of electoral records
Electoral records include the voters registry, absentee ballot requests, tally sheets or any other document used in the elections. This can also include the personnel records of the electoral management body, time-sheets, official vehicle log books, warehouse inventory books or other documents used to manage election administration.
The problem with seizing electoral records is that they are usually needed to hold the elections. There could be a conflict between the need to collect evidence and the need to keep these records to finish the electoral process. A decision would have to made on whether to preserve the integrity of the electoral process and hold off on the collection of records, or whether the needs of the investigators were more important. This kind of decision is usually made by a court.
In the U.S., for example, 'seizing or subpoenaing official election records into federal custody may deprive state authorities of materials they may require to tabulate, canvass and certify the results of elections. No action should be taken that deprives the state of records it needs to perform this state activity..' 350
In other cases, courts or other officials, might determine that the alleged complaint was so serious that the entire electoral process had been compromised. In these kinds of cases, the need to ensure the integrity of the process through an immediate investigation might take priority over the continuation of the elections.
