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Willingness to Repay Stolen Funds Not Always An Indication of Guilt

During our basic interviewing and interrogation course, the point is made that during an interrogation a suspect’s willingness to reimburse a victim for stolen money or property is often tantamount to a confession. Under this circumstances, the suspect’s agreement to make restitution means two things. The first is that it represents a strong indication that the suspect is guilty of the theft and, second, that the suspect is close to making the first admission of guilt. This procedure is illustrated during an interrogation shown at the course. The essence of this portion of the interrogation is presented below:

I: “Kristi, I would like to believe that this is not something you planned this out long in advance, where you got this job knowing that you would have access to money everyday and could take money whenever you wanted it. What I would like to believe is that something important came up in your life and you found yourself short and gave into temptation and took this $1000. Here’s what this is boiling down to. Either you needed that money for something important or you just blew it, maybe on drugs or something. I don’t think that’s the case. I don’t think you are a drug addict. You needed it for something important, didn’t you?”

S: “I’m not saying I took it.”

I: “Look Kristi, it boils down to this. Either you care about this thing or you don’t. Now I think you care about it.”

S:“Obviously I care what’s happening.”

I:“Tell me this. At least would you be willing to pay the money back? Let’s face it, if you care about this at least you should be willing to pay the money back. Would you at least be willing to do that”

S: “Of course.”

I:“Okay, good. That tells me that you want to get this straightened out. Now, what did you need the money for? Did you need it for drugs?”

S: “No. It was for bills.”

I: “What kind of bills?”

S: “Medical bills.” (At this point the suspect offers a fully corroborated confession)

As this interrogation illustrates, the investigator’s suggestion that the suspect make restitution is merely a technique to allow the suspect to start accepting responsibility for her crime; it is a stepping stone that may lead to the first admission of guilt and should not be considered proof of the suspect’s guilt. Common sense tells us that an innocent person would not be willing to accept responsibility for a theft he or she did not commit. However, there is a notable exception to this axiom.

Recently, two participants at different training seminars reported incidents where confirmed innocent employees agreed to repay funds that were apparently stolen by another person. Follow-up inquires revealed an important distinction between those cases and the previously mentioned interrogation. Specifically, the innocent employees’ agreement to make restitution was the result of being asked a question to that effect during an interview. Furthermore, the question was phrased in such a way as to imply that the investigation would stop if the employee reimbursed the funds, e.g., “To resolve this internally, and not turn it over to the police, would you be willing to pay the amount that is missing?” In essence these innocent employees believed that forfeiting the money was more desirable than having to deal with the police. This situation is very similar to the innocent defendant who agrees to plead guilty and receive probation in order to avoid the gamble of a trial which could result in a jail sentence.

The experience of these investigators serves as an important reminder of the distinction between an admission and a confession. An admission is a statement or action that tends toward proving guilt whereas a confession is a voluntary statement that accepts responsibility for the crime, coupled with details of the crime only the guilty person would know. When an employee is discharged or a criminal complaint is filed based on a mere admission of guilt there is clearly an increased risk of a miscarriage of justice and subsequent civil liability. A competent investigator needs to recognize whether or not a suspect’s statement or action supports probable guilt or, conversely, has no particular value in assessing involvement in a crime. The following guidelines are offered with respect to evaluating the probable guilt or innocence of a suspect who agrees to make restitution in a theft:

1. If the offer is made spontaneously, without prompting by the investigator, it is more typical of the guilty. A common example of this is the shoplifter who, upon being stopped outside the store, immediately offers to pay for the concealed merchandise.

2. If the offer is made during an interrogation and is not connected with an implied promise of leniency, it is more typical of the guilty. In the earlier mentioned interrogation notice that the investigator did not imply any possible leniency or lesser consequence if the suspect agreed to pay the money back — he merely asked if she would be willing to repay it.

3. A suspect who agrees to make restitution when asked an interview question such as, “Would you be willing to reimburse the ($500) that is missing?” is probably more likely guilty.

4. A suspect who agrees to make restitution for missing funds in exchange for leniency or to resolve the investigation should not be considered as guilty based on that willingness. Consider the honest tax-payer who is audited by the IRS. The audit incorrectly reports that taxes need to be paid on past unearned income. The taxpayer is offered a choice between paying $800 in back taxes or to contest the assessment in court. Certainly some tax-payers would pay the $800 rather than go through the inconvenience of contesting the assessment.


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