The Interrogators’ Guide to Depositions, Investigations, & Discovery: What Civil Trial Attorneys Can Learn from the World’s Best Interrogators

By John Morgenstern Esq.

Captain John Morgenstern served in many roles in America’s War on Terror during his military career as a JAG officer in the U.S. Army.

While overseas, he saw the most effective and successful interrogation and investigation methods, and during his civilian law career, which includes defending officers accused of civil rights violations, he’s developed expertise on public law enforcement methods.

In this guide for civil trial lawyers and investigators, he shares the most effective and appropriate ways of communicating with witnesses and deponents to obtain truthful, reliable, and verifiable testimony and evidence to help make your case.

Morgenstern also examines historical, time proven methods of gaining information, including the techniques used by the father of the U.S. intelligence gathering system, Hanns Joachim Scharff, during World War II.

You’ll also learn how to use personality profiles, read body language, and exploit other indicia to conduct effective depositions and interviews, including with children, disabled and infirm individuals, and uncooperative witnesses.

Get the practical skills you need to prepare for depositions, and maximize your chances of enjoying productive encounters with witnesses with The Interrogators’ Guide to Depositions, Investigations, & Discovery.

• Language: English
• Publisher: Archway Publishing
• Release date: Jun 7, 2018
• ISBN: 9781480862043

John Morgenstern Esq.

John Morgenstern, Esq., is a top-rated Philadelphia attorney. In his prior military career, he was awarded the Bronze Star Medal in Iraq in 2004. He is rated AV® Preeminent by Martindale-Hubbell®, the highest possible rating for both legal ability and ethical standards, and has been named among America's Top 100 Civil Defense Litigators (PA). He lives in Wilmington, Delaware, with his wife and their two children.

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Copyright © 2018 John Morgenstern, Esq.

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Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

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ISBN: 978-1-4808-6203-6 (sc)

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ISBN: 978-1-4808-6204-3 (e)

Library of Congress Control Number: 2018946816

Archway Publishing rev. date: 06/07/2018

For

Alison, Brian & Anna

In Memory of

2LT Robert Madden

December 9, 1916 – November 23, 1943

CW5 Sharon Swartworth

November 8, 1959 – November 7, 2003

SGM Cornell Gilmore

December 8, 1957 – November 7, 2003

Mia Shorteno Fraser, Ph.D.

April 30, 1983 – June 12, 2017

Disclaimers

The views expressed in this book are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

Except as otherwise noted, the examples and vignettes contained in this publication are fictional. While they may be based on the experiences of the author and others, any similarity between an example or vignette and an actual investigation or lawsuit is purely coincidental. Except as otherwise noted, the names of parties, attorneys, and witnesses are fictitious and are not intended to identify or reference any person.

The contents of this publication are provided for informational purposes only. Nothing in this book should be construed to constitute legal advice, and you should not rely on any part of this book or any publication referenced or included herein as legal advice. Nothing in this book is intended to, nor should it be construed to, create an attorney-client relationship.

Terms

THE

INTERROGATORS’

GUIDE TO

DEPOSITIONS,

INVESTIGATIONS,

&

DISCOVERY

What Civil Trial Attorneys Can Learn from the World’s Best Interrogators

Contents

Preface

Introduction

Section One

OVERVIEW AND HISTORY OF

INTERROGATION TECHNIQUES

1.     Interviews, Interrogations, And Depositions

a.   Interviews

b.   Interrogations

c.   Depositions

2.     Intelligence Interrogations: 21 Approaches, And Elicitation

a.   Elicitation

b.   How Interrogation Approaches Work In Depositions

3.     Law Enforcement Interrogations

a.   The Reid Technique

b.   The Integrated Interrogation Technique

c.   The Alternative PEACE Technique

4.     The Critical Importance Of Rapport, Operational Accord, And Genuine Verbal Communication

a.   Rapport And Operational Accord

b.   The Intelligence Science Board Reports On Educing Information

c.   Preparing To Achieve Operational Accord

d.   Ways To Establish Operational Accord During Your Deposition

e.   Silent Signals Of Operational Accord

5.     The Legendary Hanns Joachim Scharff

a.   Five Lessons From The Luftwaffe’s Master Interrogator

b.   Scharff’s Life In America

6.     Lessons From Interrogations In Iraq And Afghanistan And How The Interrogators’ Experiences Will Help You Take A Better Deposition

a.   A Direct Approach Does Not Always Work

b.   How To Use An Interpreter To His Or Her Maximum Capabilities

c.   Double-Sourcing Critical Information

7.     A Word On Enhanced Interrogation Techniques And Testing Your Opponent

Section Two

PERSONALITY TYPES, PROFILES,

AND CHALLENGING WITNESSES

8.     Personality Profiles And Keying In On Your Deponent’s Motivation

a.   Using Age To Assess Personality And Motivation

b.   Myers-Briggs Type Indicator®

9.     How To Identify Deceit And Use Clues From Body Language And Facial Expressions

a.   Yada Yada Yada: The Devil Is In The Details

b.   Where Body Language Does Not Match The Verbal Message

c.   Chasing The Spontaneous Lie

d.   Where Knowledge And Technical Vocabulary Do Not Match The Witness

e.   Where Testimony Does Not Match The Question Asked

f.   Where Testimony Is Clearly Rehearsed

g.   Body Language And Neurolinguistics

h.   How Men And Women Communicate

i.   Facial Expressions

j.   Voice Inflection

k.   Language Content

l.   Five Actions To Take Upon Identifying Indicators Of Deceit

10.   Breaking The Difficult Witness

a.   One With Faux Anger Issues

b.   The Grieving Witness

c.   Preparing To Depose A Difficult Witness

d.   Using Captured Enemy Documents

e.   Confronting A Hostile Witness

f.   Handling The Witness Who Refuses To Answer Questions

11.   Tips For Deposing A Child

a.   The NICHD Approach

b.   The U.S. Department Of Justice Survey

c.   Common Phases Among Generally Accepted Protocols

d.   Common Law Enforcement Interview Methods

e.   The Pappas Method

f.   Choosing The Right Location And Setting

g.   Recommendations For Questioning A Child Victim On Damages

12.   Gaining Reliable Information From The Mentally Challenged Or Disabled Witness

a.   Diagnostic And Statistical Manual Of Mental Disorders (DSM-5)

b.   Wechsler Adult Intelligence Scale (WAIS)

c.   Thematic Apperception Test (TAT)

d.   The Field Medic Neurological Assessment Test

e.   The NFL’s Sideline Concussion Assessment Tool

f.   Assessing Your Witness’ Thought Process And Memory Using Preliminary Questions

g.   Witnesses With Traumatic Brain Injury

h.   Incapacitation By Illness, Memory Distortion, And Confabulation

i.   Incapacitation By Trauma

j.   The Reluctant Victim

k.   Recommendations For Questioning Mentally Challenged Or Disabled Witnesses

13.   Civility, Ethics, And Best Practices For Interrogations And Depositions

a.   Gallup Polls On The Legal Profession

b.   High-Value Detainee Interrogation Group’s Report And Interrogation Best Practices

c.   Borrowing From The HIG Report To Improve The Legal Profession

d.   Seven Core Values Of The U.S. Army

e.   Attorney Oath Of Office

14.   Using Interrogation Concepts In Depositions Of Expert Witnesses And Corporate Designees

a.   Setting Goals For Your Deposition Of An Opposing Expert

b.   Setting Goals For Your Deposition Of An Opposing Corporate Designee

c.   Applying The HIG’s Sensemaking / Cylinder Model To Achieve Your Goals

Section Three

TAKING AND KEEPING CONTROL

15.   Preparing For Your Deposition Like A Master Interrogator

a.   Identifying Your Objective

b.   Investigating Your Case And Your Witness

c.   Social Media Research: Over 111 Websites To Search During Your Investigation

d.   Crafting Deposition Questions In Three Steps

e.   Avoiding Objectionable And Unreliable Questions

f.   Preparing In Advance To React To And Pursue New And Unexpected Information During The Deposition

g.   Reacting To Unexpected Spot Reportable Information

16.   Finding Your Personae Gratae

a.   Traits Of A Military Interrogator

b.   Challenges In Deposing The Willing Confessor

c.   Acting The Part Of The Inquisitive Journalist

d.   The Value Of Spontaneity

e.   The Introvert Playing The Part Of The Extrovert

f.   Bonding With A Witness Under Tight Time Constraints

g.   Choosing Your Persona

17.   Controlling The Physical Environment

a.   Controlling vs. Governing

b.   Your Personal Appearance

c.   Improvising To Create The Environment

18.   Timing, Costs, Sequence, And Clock Management

a.   Planning When And How To Take Your Depositions

b.   Timing And Clock Management During Depositions

c.   When To Interview And Depose A Child Witness

d.   Morning vs. Afternoon

e.   Saving Costs

19.   Conducting Forensic Analyses Of Prior Statements

a.   Criterion Based Statement Analysis

b.   Statement Validity Analysis

c.   Scientific Content Analysis

20.   How Interrogators Maintain Their Composure And Productivity Under Pressure

a.   STRIVE To Succeed

b.   Spirituality And Religion

c.   Skip Unhealthy Vices And Get Enough Sleep

d.   Glucose, Sucrose, Cellulose, And Your Brain

e.   Alcohol, Drugs, Sex, And Rock-N-Roll

f.   Sleep

g.   Time Management And Organization

h.   Breathe

i.   Vacation

j.   Exercise And Hobbies

k.   Enjoy Life And Seek Help When Necessary For Yourself And Others

21.   Preparing Your Clients To Combat Interrogation Tactics During Their Depositions

a.   Prep Sessions

b.   Preparing To Answer The Most Difficult Questions

c.   Interrogation Tactics vs. Proper Deposition Questions

d.   The Scharff Mindsets

e.   General Advice For Every Deposition

f.   Preparing Clients For Video Depositions

g.   Summary

Conclusion

Appendix A: Standard Deposition Instructions

Appendix B: The High-Value Detainee Interrogation Group’s Summary Of Its Interrogation Best Practices Of August 26, 2016

Appendix C: Categorizing And Organizing Evidence

Appendix D: Continuation From Chapter 15: The Other 94 Websites To Consider During Your Social Media Investigation

Notes

Acknowledgments

About The Author

Continuing Legal Education

Preface

I wrote this book with a sincere desire to help my fellow trial lawyers become better at our craft and with a firm belief that this information will help any civil litigator take his or her game to a new level. You will learn to view investigations, depositions, and the discovery process from a different angle. This book is not intended to present the complete universe of information or training on intelligence operations or police interrogation procedure. My goal has been to create a piece that is as informative and educational as it is accessible and fun.

The forces that drove me to write this book are my fellow military service members and the police officers and first responders whom I represent. This book was inspired by my fallen comrades who made the ultimate sacrifice for our great nation, especially JAG Corps Chief Warrant Officer 5 Sharon Swartworth and JAG Corps Command Sergeant Major Cornell Gilmore.¹ This book was inspired, also, by my fellow service members who nobly and selflessly have given significant years of their lives to serve our country² and others, such as Mia Shorteno-Fraser ³, who dedicated themselves to helping children and families of military service members.

This book is my tribute to the brave men and women in our law enforcement communities who dedicate their lives to protecting us from the bad guys. I truly admire the detectives who keep us safe in their relentless pursuit of justice and truth through investigations, field interviews, and interrogations. Truly inspiring are the first responders who risk life and limb to save others, usually people they have never met.

This book consists of 21 chapters. There are seven chapters in each of three sections. This is no coincidence. It is my personal, albeit feeble, 21-gun salute to our fallen heroes who served in the military, abroad and at home, and as law enforcement officers and first responders in any capacity. There is far more to be written on each of the topics presented here.

It is my pleasure to donate at least ten-percent of my profits from this book to charities benefiting veterans and families of military service members and fallen police officers and first responders. I choose the benefitting charities carefully with a focus on giving to those organizations that streamline operations to provide maximum benefit to those who deserve it while minimizing their costs.

You will notice that I frequently use the gender-specific pronouns he and she, him and her, and his and hers interchangeably. I do this simply to improve the flow of the content and I do not intend, in any way, to suggest that attorneys, judges, investigators, interrogators, suspects, subjects, or any other depicted person is more or less likely to be male or female.

I use the terms subject, witness, and informant in various contexts. Since 2006, military intelligence material renames such a person a source of Human Intelligence (HUMINT). Each of these terms refers to a person being asked questions and, for purposes of civil litigation, is equal to our witness or deponent.

I hope you enjoy reading this book as much as I have enjoyed writing it. If some of you contact me to let me know that you learned something new, I will consider this adventure a success. I probably will ask your permission to use your story in a future book and CLE to help others. Please tell me what has worked for you and what has not. Let me know if any of these tactics makes your case, or if you have encountered any particular challenges following my recommendations. Like you, I strive continuously to improve.

John Morgenstern

Wilmington, DE

March 17, 2018

Introduction

Desperate times call for drastic measures.⁴

- Hippocrates

and

Necessity is the mother of invention. ⁵

- Plato

In the immediate aftermath of the Abu Ghraib scandal was born of necessity a new set of rules and methods for conducting military and intelligence investigations, interrogations, interviews, and debriefings. These new tactics and techniques were created under extreme pressure when lives depended on it. Indeed, lives were saved by the prompt reinvention of our intelligence gathering protocol. The very best and brightest in the world’s intelligence community collaborated to identify the breaks in our system and fix them.

The new means of collecting and organizing human intelligence already have been proven effective and efficient. Remarkably, the latest tactics and techniques used by our military and intelligence community work just as well in civil litigation and investigations as they do on the battlefield.

Here’s what happened. By September of 2003, Phase I of OPERATION IRAQI FREEDOM was complete. America’s superior forces had overtaken Saddam Hussein’s Iraq in a one-sided display of military might for the ages. The plan was to remove Saddam from power. We assumed the Iraqi people would be grateful and that a democratic government of Iraqi leaders who were loyal the west would take the helm.

However, conditions on the ground took a different turn. The springtime of shock and awe was followed by a blistering desert summer rebuilding Iraq’s infrastructure. Slowly the electrical grid came back online with some air conditioning in select locations. Hospitals, schools, mosques, churches, and some other institutions remained open and the Iraqi people were acclimating to their new normal out from under the dictatorship of Saddam Hussein. The U.S. and our allied forces generally were welcomed by the Iraqi population, who largely saw us as liberators and peacemakers, as opposed to occupiers.

As time went by, however, our approval ratings in Iraq were slipping as the Iraqi people justifiably lost their patience. There no longer was a central government providing much needed services. The unemployment rate in Iraq soared and the economy was in shambles. Things had stopped improving. Security quickly became the top concern among the Iraqi people. Then came the scandal at the Abu Ghraib prison outside Baghdad, which stemmed from the treatment of detainees during intelligence operations including interrogations.

Around that time, Saddam Hussein and his sadistic sons, Uday and Qusay, were still on the loose in Iraq, as was the founder of ISIS, Abu Musab al Zarqawi. These monsters’ open defiance of the Coalition forces emboldened many and reignited centuries of sectarian violence. The prisoners that Saddam released from Iraq’s prisons on the eve of our invasion on a pledge to never stop fighting for him were happy to partake in guerrilla warfare.

Although we were never far behind the Husseins or Zarqawi, our troops on the ground and in the air were increasingly taking fire. But from whom?

We went into Iraq with full knowledge of the competing sectarian interests that had existed in the region for centuries. Or so we thought. We were aware that the schism in Islam between Shia and Sunni goes back to the death of Muhammad in 632 A.D. and that the deep contention over the succession of leadership still lingered. We knew that Saddam Hussein was born Sunni and treated the Shiites brutally for more than twenty years. However, the extremism that emerged in post-Saddam Iraq when the Shiites began to gain influence took us by surprise.

At that time, Abu Musab al Zarqawi (a Sunni) was the leader of Al Qaeda in Iraq. He was a master of disguise and was as cunning and deceptive as any criminal on record. The mention of his name struck fear in the hearts of virtually everyone who knew anything about him. Zarqawi was catapulted to fame when he was named personally by Secretary of State Colin Powell during a February 5, 2003, presentation to the U.N. Security Council. Zarqawi was the worst of the worst. Among all terrorists, he was the only one who would send suicide bombers after targets that even other terrorists considered off limits, such as the U.N. and Arab embassies.

Soon the Sunni – Shia conflict was raging and only intensifying as skirmishes and gun battles became kidnappings, mass killings, and bombings of mosques. Zarqawi personally committed and orchestrated some of the worst atrocities the world has known, from beheadings of hostages on camera to large-scale bombings of sites crowded with civilians to unspeakable torture and mutilation of innocents.

The hunt for Zarqawi was long, tedious, and tremendously expensive in both monetary and human costs. In fact, Zarqawi’s presence in Iraq was a driving force behind the invasion of that country in early 2003. For over three years, Zarqawi managed to stay a step ahead of U.S. and Coalition forces committed to stopping him.

We needed desperately to establish peace in Iraq and the only way to begin that process was to capture Saddam Hussein and to capture or kill al Zarqawi. To find them we needed information. Every day our Marines and Special Forces rounded up suspects and witnesses for questioning. Many others came to us voluntarily with information of varying degrees of accuracy and reliability. Using the interrogation and investigation techniques developed and evolved since World War II, we were racing against time at a critical moment in history to gain the trust and confidence of the people whose world we had turned upside down.

When details of the treatment by certain service members of detainees at the Abu Ghraib prison emerged,⁶ traditional interrogation tactics and techniques immediately came under close scrutiny on the world stage. The scandal could not have come at a worse time as many American and Coalition service members had made meaningful connections in the local communities. The sudden avalanche of anti-American sentiment jeopardized the lives of each of our service members and the people who had begun to trust them.

Our military needed to overhaul and recreate our interrogation tactics and techniques and quickly. Several research studies were undertaken to determine the most effective ways to gain human intelligence. Preliminarily, the military and intelligence communities set out to determine whether Enhanced Interrogation Techniques were effective at all.

The Army’s entire curriculum on intelligence interrogation, which was first implemented in 1956,⁷ was opened to scrutiny before the highest levels of our government and the intelligence agencies of our allies. Commentary and guidance was sought from the most learned sources in America and abroad. Changes in our interrogation techniques were implemented immediately. We tried all sorts of different approaches for interviewing witnesses, debriefing members of friendly military forces, and interrogating suspects, including captured enemy combatants. Our intelligence community carefully compiled notes and statistics on which techniques worked and others that did not work at all. We learned which of our former techniques were counterproductive and produced no useful intelligence while fueling our foes’ determination to defeat our cause. We discovered new tactics that produced useful intelligence as well as loyal citizens and reliable sources of information moving forward. On September 6, 2006, the Army released Field Manual 2.22-3, Human Intelligence Collector Operations.⁸

Recognizing the need to modernize traditional police tactics, the Army also published in 2006 a new Field Manual, FM 3-19.50, Police Intelligence Operations. Through the advent of dashboard and body cameras, the American public has seen first-hand the inexcusable misconduct by some rogue cops. Many relationships between good police officers and the communities they serve have suffered and, according to several media polls, public distrust of the police in general reached new heights. Groups like The Innocence Project continue to uncover and overturn wrongful criminal convictions of past years, many which were obtained through allegedly coerced confessions, by exposing prosecutorial misconduct and presenting exonerating DNA evidence.

As a result of the changing times, the military, intelligence, and law enforcement communities have made greater strides in recent years in interrogation methods than during any other period in history. The law enforcement community is making vast improvements to its methods for identifying the best, fairest, and most effective ways of eliciting information, evidence, testimony, and confessions. The military and intelligence communities have come up with new ways to quickly and effectively gather information necessary to keep the world safe.

The greatest minds in military, intelligence, and law enforcement interrogations came together and produced revolutionary new tactics for gathering human intelligence that are directly applicable to investigations and depositions in civil litigation.

Since Abu Ghraib, there has been a renewed focus internationally on the techniques used by the German Luftwaffe’s master interrogator, Hanns Joachim Scharff, during World War II. This book presents the proven methods used by Scharff during interrogations of downed American and British fighter pilots that work well today in investigations and depositions in civil cases. Section One discusses these and other historical, time-proven methods for gaining information in addition to the latest approaches that have become the new standard in the military and intelligence communities.

Section Two is about using personality profiles, reading body language, and exploiting other indicia to conduct effective depositions and interviews. This section offers advice on working with difficult and challenging witnesses, including children, disabled and infirm individuals, and particularly uncooperative witnesses.

Section Three presents important practical skills of trained interrogators for preparing for depositions and setting the stage for a successful and productive encounter with any witness. It instructs on taking and keeping control of the physical environment as well as planning the timing and sequence of your deposition. This section will tell you how to maintain your bearing and composure under pressure for extended periods of time, including the best ways to fuel your brain for mental acuity and endurance.

The process that began in 2006 by President George W. Bush’s Executive Order 13440 of July 20, 2007, led to President Barack Obama’s Executive Order 13491 of January 2009. Ultimately, the efforts of both Commanders in Chief toward recreating the U.S. government’s intelligence program culminated in the September 2016 report titled Interrogation: Review of the Science from the High-Value Detainee Interrogation Group (HIG). The HIG collected and analyzed decades of statistics and virtually all available data on interrogations. Perhaps trial attorneys conducting depositions, investigations, and discovery can benefit as a result of these efforts.

Section One

OVERVIEW

AND

HISTORY

OF

INTERROGATION TECHNIQUES

Chapter 1

INTERVIEWS, INTERROGATIONS, AND DEPOSITIONS

If you are a trial lawyer, you might imagine a world in which you pick up a case knowing exactly how every witness will testify, how every piece of evidence will be received by the jury, and the end result. You take only the best cases. You never lose and you make a lot of money. New clients line up at your door. Parades are held in your honor and little league baseball fields are dedicated in your name.

Well, snap out of it because that world does not exist. In fact, every case will begin with a single interview that probably will lead to several more interviews. You will conduct your investigation to gather evidence and identify your witnesses, who may eventually sit for depositions and testify at trial.

Interrogators of every kind – military, intelligence, and law enforcement – share a single purpose: to find truth. Despite certain public perceptions, civil trial attorneys also seek the truth. We do not appreciate it when our own clients lie to us or leave out key facts when they tell us their versions of events. We work hard during our investigations and discovery to expose the failures in the stories told by adverse parties and witnesses. We ask questions of our clients and witnesses from our first contact and expect them to be honest with us.

Fair and effective interviews, interrogations, and depositions are at the very core of our criminal and civil court systems and are essential to maintaining good order and discipline in any civilized society. People seek peace and therefore crave truth. Truth and fairness are essential to any peaceful life. While most of us try to be honest most of the time, people lie constantly. They always have and always will.

While truth is important and necessary to achieve fairness and peace, perceptions differ. Biases and ulterior motives make people lie. Sometimes we fib or tell white lies rather than tell someone a truth that may be offensive or hurtful.

You are every bit as strong as when you were 25, honey, and much better looking, too.

Fat? No way. Of course not. If anything, those jeans make you look even thinner.

Your new hairdo looks stunning, Aunt Libby. It’s absolutely beautiful.

After all, so many things in life are subjective and it’s not a lie if it’s your opinion at that moment, right? Some people really do think vegemite tastes good.

Other lies are much darker and more sinister. Coldhearted criminals call delicate older people claiming to be IRS agents to dupe them out of their life savings. Human traffickers bilk terrified refugees of their meager savings while subjecting them to unspeakable horrors. Deranged sexual predators lure children. War criminals lie to come into power only to fulfill their sick dreams of genocide and ethnic cleansing.

Many of the world’s most depraved individuals will never admit to their crimes, much less apologize or make amends. Some of the worst scoundrels among us surround themselves with people who will lie to protect them or who are too afraid to come forward to tell the truth to authorities in time to save another person from becoming the next victim.

These are some of the reasons why we need professional interrogators. Every military campaign needs Special Forces to rappel from Blackhawk helicopters to storm compounds and excise hostages and war criminals just as every town needs brave police officers to answer domestic violence calls and arrest drug-peddling thugs. But how do these heroes know which compound to storm or who is selling dangerous narcotics? How will they