Are Your Questions Undermining Your Investigations?

Avoid these common problematic questions when conducting investigative interviews.

By Jonathan A. Segal August 25, 2021
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Are Your Questions Undermining Your Investigations?

The quality of an internal investigation depends, at least in part, on the quality of the questions asked. When talking to witnesses, the investigator should follow a funnel approach, as discussed in this article, by starting with questions that are broad and then become progressively more targeted. 

It’s important to note that some types of questions are problematic, either because of their content or because of when they are asked. These questions may preclude the investigator from getting necessary information or may send the wrong message. Here is an overview of some of the most common problematic questions.

Leading Questions

The most common mistake investigators make when conducting an interview is asking a leading question.  

Consider the following scenario: Keisha alleges that Mark made a “joke” about Asian-American drivers at Monday’s department meeting. (I put joke in quotation marks because there is nothing funny about stereotyping or making fun of people based on their race, ethnicity or national origin.) An example of a leading question to Mark would be “Didn’t you make a joke about Asian-American drivers at Monday’s department meeting?”

Let’s fix it by using the funnel approach, with the last question in the series being the most narrow:

  • Tell me about the department meeting on Monday.
  • What was discussed?
  • Did you say anything about drivers? 
  • Did you make a so-called joke about Asian-American drivers?

Questions That Don’t Project Impartiality

Let’s imagine that the meeting in the prior scenario occurred 10 months ago and the investigator asks, “Why did you wait so long to report this?” While the issue of timing is legitimate, the question is problematic. It suggests the concern should have been raised earlier. 

A better question would be “Can you tell me why you decided to report this now?” This question gets to the issue of timing but in a way that does not reflect judgment by the investigator one way or the other—at least not yet.

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Complex Questions

Each question should address only one issue. It is hard to answer a question that covers multiple issues.

Consider the following question: “Max, you asked Sonya for Brenda’s cellphone number, then called Brenda and asked her for a date?” 

The investigator needs to break the question down into a series of nonleading questions. Following the funnel approach, and depending on the individual’s answers, a better set of questions would be: 

Did you ask Sonya for Brenda’s cellphone number?

  • Did you call Brenda?
  • Did you make any requests of Brenda when you called her?
  • Did you ask Brenda for a date?

Loaded Questions

A loaded question is one that assumes a fact that has not yet been established. 

Let’s stay with the prior scenario and imagine that the interviewer asks, “What did you say when you called Brenda?” If it has not yet been established that Max called Brenda, this is a loaded question. 

Questions That Suggest Legal Conclusions

Employers should avoid terms that have legal conclusions or connotations and should focus on behaviors instead. 

For example, instead of asking, “Were there any witnesses to David’s harassment?” try, “Can you tell me whether anyone was present when David made the comments you have shared with me?”

Or rather than inquiring, “Did Sheila bully anyone else?” say, “You said Sheila yelled at you. Are you aware of Sheila yelling at anyone else?” 


Keep an Open Mind

The questions an investigator asks not only send a message to the person being questioned, but also may reflect the thinking of the inquirer. For example, leading or loaded questions may suggest that the investigator already has reached a conclusion.

If most of us are being honest, we admittedly begin to reach a conclusion throughout the investigation as opposed to waiting until the end. When that occurs, we may ask questions we think will lead to answers that confirm our preliminary conclusion.

If you hear yourself asking a problematic question, correct it. Say, “Let me start over. My question is …”

Focus on what you may be thinking and recalibrate your thinking and questions as necessary so you keep an open mind until your investigation is done. —J.A.S.

Questions That Reveal Too Much Information

At times, some information will need to be revealed to provide context for a question. The key is not to reveal too much.

Take the following example: “I was told by Diane, Jorge and Jamal that you said …” That may be true; however, is it really necessary for the accused party to be told precisely who said what?

Try this opening question instead: “How would you respond if I told you multiple people heard you say …?” 

Questions That Assign Judgment

There are two types of questions that assign judgment.

The first type involves asking whether witnesses have heard anything they think is odd or unusual. The problem with this question is that there could be problematic or inappropriate behavior that is not odd or unusual. If sexual banter happens all the time, the witness might not mention it in response to the question.

The second type involves asking whether witnesses have heard anything they think is inappropriate. The problem with this question is that it allows a witness to decide what is or isn’t inappropriate. For example, the witness may wrongly think sexual banter is perfectly fine.

That does not mean these types of questions are always ill-advised. Just be sure to use them judiciously. Under the funnel approach, they may occur early in the series of questions, as in the following: 

  • What did you talk about?
  • Did you hear any inappropriate remarks?
  • Did you hear any sexual banter?
  • Did you hear Andre talk with Mary about …?

Conclusion

I have answered all of your questions, right? If this question sounds appropriate to you, please reread this article.  

Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.

illustration by Adam Niklewicz for HR Magazine.


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