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When Does Legitimate Investigative Activity Become Intimidation?

  • December 15, 2010
  • by Colleen Collins

Recently, the media reported that a famous movie star hired private investigators to visit witnesses and make a forceful impression. In November 2009, a San Francisco defense investigator was indicted by a San Francisco Superior Court criminal grand jury on one felony count of witness intimidation. A year earlier, two New Mexico women filed a lawsuit claiming a private investigator practiced intimidation after showing up at their homes, demanding proof of their U.S. citizenship and threatening to call immigration authorities.

The line between investigation and intimidation is often clouded with subjectivity and shaded by the manner and approach used by the investigator when approaching the witness. The law, however, will step in when an investigator does something that would cause an average, reasonable person to become fearful. In such cases, the investigator can be charged with intimidation.

Let's look more closely at the definition of intimidation. The FindLaw Legal Dictionary defines intimidation to make timid or fearful, especially to compel or deter by or as if by threats. A Colorado Supreme Court case from 1979, People v. Jenkins, used the definition of intimidation from Merriam-Websters Dictionary, Third Edition p. 1184, to define "intimidate" as "to make fearful, frightened, compel action or inaction (as by threats)." The law makes it plain that it is lawful to investigate but that investigators cross the line when they perform some act intended to frighten the subject of the investigation.

An example of intimidation is to leave a dead fish on the windshield of someones car with a rose in its mouth (which L.A. investigator Anthony Pelicano did to intimidate a newspaper reporter who was on the trail of a crime). The reporter was a witness before an official proceeding and Pelicano was charged with intimidating a witness with this not-so-subtle gift of seafood. While the FBI agents in the Sopranos could sit at the foot of Tony's driveway and even chat with him on occasion, they could not attempt to run his car off the road or interfere with his business because those acts constitute intimidation (or police harassment).

PIs are sometimes hired to discourage witnesses to testify in a court case, or to take photographs of an individual and his/her home, car, workplace. These investigative tasks can be easily accomplished without invoking fearful reactions from the subjects. But when these tasks are done in such a way to intentionally frighten people and/or drive them from either testifying or bringing a claim in court, those actions are legally classified as intimidation.

Private investigators are also regularly asked by bill collectors to visit debtors. This is a dicey area because federal credit collection practice laws permit contact but they dont permit collectors to harass, threaten with bodily injury or improper damage to the debtors reputation. Any time that a debtor can prove that a PI is guilty of these acts, then the PI is personally liable, his firm is liable, and the collection agency is liable.

So how can a PI protect him/herself from being accused of using intimidation?

Stay calm. Even if a subject is baiting you, keep a lid on your reactions. Sneering, clenching fists, even prolonged staring are threatening signals that signal attack. Alternatively, relaxed body language encourages people to open up. A primer on using body language is at Changingminds.org under Techniques for Changing Minds/Body language at http://changingminds.org/techniques/body/body_language.htm.

Document encounters. Especially if a subject is known to be difficult, have an associate photograph or film the encounter. At our agency, if we have reason to believe a subject is easily angered or prone to inflammatory, false claims, two investigators are assigned to the task. While one conducts the investigative activity, the other is nearby documenting the encounter with a still or video camera.

When possible, meet subjects in public places. People tend to be on their better behaviors, and more accountable for their actions, if they know they're being observed. Consider meeting subjects for interviews in such public places as coffee shops or restaurants.

Know and be sensitive to your witness. Find out about witnesses from others who know them, especially if a witness is elderly, frail, suggestive, or even involved in criminal activity themselves. Become prepared for those who might make false allegations based on cultural or societal differences (consider bringing someone from the witnesss culture, for example, to the interview). Knowing your witnesses soft spots can help you avoid allegations of threats or manipulation.

Keep your client under control and at a distance. Some clients like to couple your involvement with their own interpersonal tyranny. Example? Jack, your client, hires you to interview his ex-girlfriend about her domestic violence claims. Unknown to you, Jack calls the ex-girlfriend and tells her that he has hired a PI so that he can prove she is a drug addict who abuses her children. Upfront, and in clear terms, tell your client to stay away from witnesses who may be sensitive to him.

Guest contributor Colleen Collins is a professional private investigator and co-owns Highlands Investigations and Legal Services, Inc. (http://www.highlandsinvestigations.com/) based in Denver, Colorado. If youre interested in writing articles about the private investigation industry, PInow.com is always looking for guest writers to share their industry knowledge. E-mail [email protected] to find out how.

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