Interviewing ChildrenComputer Forensics

School Law Lesson 12B

Stop, Think, Reflect All allegations require thinking of a future

worst-case scenario which could happen if you do not investigate

Your investigation decisions could end up on the 5 o’clock news.

Your investigation decisions could impact an arbitration or lawsuit.

Your investigation decisions WILL impact actions you can or cannot take in the future.

Stop, Think, Reflect

Do SOMETHING

Do the RIGHT thing

Do it RIGHT

What Happens When You Don’t Do the Right Thing? A student reported to her parents that Mr. Smith

hugged her “very tight” after school one day. The parents call you. You listen to the parents and then talk to Mr. White, who says he never hugged the girl and maybe she perceived it wrong because he just patted her on the back. The parents said that the classroom was empty, so you figure it’s his word against the student’s and you won’t be able to prove anything. You tell the parents you can’t substantiate the allegation, so you do nothing else. Three months later Mr. Smith is accused of molestation, and the girl comes forward to say that she and also her friend were hugged by Mr. Smith. Your supervisor asks you why you never talked to the girl herself? The local paper asks the same question.

What Happens When You Don’t Do the Right Thing?A 37-year old teacher tells you that when she went

to your high school, “everyone” was saying that Mr. Jones was having a sexual relationship with Susan Marks when Susan was a senior. You figure it was almost 20 years ago, you wouldn’t be able to find the student now, and this isn’t even eye witness evidence. You don’t investigate, and another girl turns in Mr. Jones for sexual misconduct. Turns out, you could have “googled” her name and found her immediately. The local news did. And she told them she had been victimized as well, but had been too afraid she wouldn’t be believed.

Remember: The 7 Tests Notice: Did the employee know the action would result in

discipline? Reasonable rule of order—Is the rule reasonable?

Investigation—Did the employer make a true and thorough effort to determine the truth?

Fair Investigation—Was the investigation conducted fairly and objectively?

Proof—Was their sufficient evidence?

Equal Treatment—Are penalties given even-handedly without discrimination?

Penalty—Was the consequence related to the seriousness of the offense and employee’s past work record?

Working with Law Enforcement District security officers are not the same

as law enforcement—non-administrative employees should not investigate other employees in order to maintain the appearance of “neutrality”, not to mention workplace harmony

Try to work WITH law enforcement, not AFTER them, because the outcome of the legal case could take months, and might not help YOUR employment case

Questions to Ask Your Police Detectives BEFORE a Big Case

Can we agree that we will interview witnesses together?

Can we agree that we notify you and you notify us so that we don’t double the work?

Can we work on the timing of the arrest to allow me to get a resignation agreement or take the appropriate employment action?

Can we get your investigative materials un-redacted as a “cooperating agency” when you send them to the prosecutor?

Anything You Collect or Write is Likely to Be a Public Record Tiberno v. Spokane County: Excessive emails

were of public concern, but the content was not FERPA could be a reason not to release

records and IS a reason to redact certain details

Investigators hired by the District’s attorney’s to protect against possible litigation can provide information to the District that is NOT a public record (Spokane School District v. Cowles Publishing)…but think about the implications before doing so in an employee misconduct case.

Special Processes for Interviewing Children/Teens

Step 1: Develop rapport with student

Step 2: Developmental screening: inside/outside; first/last; over/under; on top/underneath

Step 3: Competency check: establish that the child knows the difference between a truth and a lie, knows the consequences of a lie, and secure agreement that he/she will tell the truth

Interviewing children, cont.

Step 4: Establish ground rules. It’s OK to say, “I don’t know”; it’s not OK to guess; it’s OK to correct me if I make a mistake; I may ask a question over and over so it’s OK to repeat the same answer; you can answer a question by drawing a picture or writing it down

Step 5: Address the topic of concern. If they don’t know why they’re there to talk, then…

Interviewing children, cont.

(Step 5: Addressing topic of concern, cont)

1. Ask about a teacher/employee not accused: Why do you like him/her?

2. Tell me something you don’t like about the (not accused) Ms. Smith?

3. Tell me something you like about the (accused) Ms. Jones?

4. Tell me something you don’t like about the (accused) Ms. Jones?

Last resort: Be direct about asking about the issue

Interviewing children, cont.

Step 5 continued: Use the funnel technique: broader

questions then funnel them to the who, what, where, why—don’t say, “Did he touch you?”

What did he/she do? Who was there? How was that for you? Where did it happen? When (general time frame, not clock when)? And then what happened?

Interviewing children, cont

Step 5, continued Don’t give students leading answers, like

“did he touch you”; instead say, “what did he do?”

Avoid using pronouns—use specific names so as to avoid confusion

Always use the child’s language in interviews

Interviewing children, cont.

Step 6: Closure. Ask if he/she has any questions. Be honest “we don’t know yet what will happen”. Ask if there is anything else you want to talk about. Tell student we may need to talk again.

Interviewing children, general

Be global and screen for “red flag” behaviors “Have you ever been in a teacher’s car? Have you ever emailed a teacher? Has a teacher ever emailed you? Texted you? Have you ever been alone with a teacher? Has a teacher ever given you a gift? Have you ever been to a teacher’s house? Has a teacher ever hugged you?

Interviewing children, general

Avoid being therapeutic. You must resist value judgments like “that must have been terrible for you!”. Instead, “That sounds uncomfortable, how did it feel for you?”

Avoid asking for permission. Not “Can we talk about how he touched you?” Instead, “Let’s talk about the time he touched you.”

Interviewing children, general

Never make any promises of confidentiality, removal of teacher, or extra homework/free/play time

Never state: “This is hard to talk about” Be careful with exact times and numbers Be careful asking, “Why didn’t you tell us

earlier?” Do challenge anything vague about who

did/said what to whom

Computer Forensics

First, think about ALL the types of technology that might be useful

Think about when technology might be useful even when it is not the primary allegation

Remember phone logs, texts, computers, thumb drives, laptops, internet access, email communication

Computer Forensics Verbally state, and if you can in writing: “I am

directing you not to delete anything on the computer, including history internet files.

Give little notice for when you’re coming to pick up the technology

You must follow “chain of evidence” protocols Consider an initial look first and then

negotiate with the employee how deep he/she wants you to look if he doesn’t resign.

Computer Forensics

Don’t have your technology department “have a look” unless they are trained at a high level for forensics (only about 6 individuals in Spokane are)

Outside analysis is best, though it can be expensive

Global CompuSearch is the Spokane company to use: 509-443-9293 (but consult with legal counsel first)

Questions to Ask Employee Why so many texts to student? Why phone calls at 10pm? Why are you visiting ___ internet sites? When are you working if you’re using the

computer that much? Why did you take your laptop home? If you didn’t visit that site, who did and

bring him/her in so I can verify your version of events

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