Avoiding Allegations of Bias

Investigators can be accused of not being fair, of not looking at all the facts, and of drawing conclusions instead of investigating facts. Sometimes, the investigator’s motivation or alleged motivation may be called into question based on certain assumptions and beliefs related to his or her cultural background or gender or that of the individuals who are party to the investigation. A good investigator has to guard against letting such assumptions affect his or her thinking. The investigator must give every person who he is investigated the same opportunity and the same benefit of the doubt during the investigative process. The investigator’s job is to remain neutral. Consider the overwhelming majority of allegations of sexual abuse are made by women against men. However, that does not mean that when a man is accused, the investigator can assume he probably committed sexual abuse. Nor does it mean that when a woman is accused, that sexual abuse is unlikely. Investigators have to keep an open mind and stick to the facts.

An investigator also cannot be influenced by history. Suppose a nurse has been investigated for a drug diversion. After going through the whole investigative process, she goes back to work. Then, another investigation for drug diversion is necessary. Simply assuming the nurse is guilty would be a disservice to the nurse and the investigative process. Making the assumption means the investigator is likely missing other areas of inquiry and other people who should be considered.

Of course, self-regulation by its very nature is always open to allegations of bias. Regulators can be portrayed as nurses who are supposed to investigate other nurses, but who simply protect each other and look out for each other’s best interest. It is this very assumption by some people that creates the need for investigators to take great care in maintaining an unbiased approach to their work.

 

A Question of Bias

During a hearing, the defense lawyer made a motion that a case be dismissed because it was based on bias information provided by the investigator. The lawyer took several excerpts from the investigators report out of context:

• “Mr. Jones admitted he didn’t like the complainant.”

• “Mr. Jones laughed at the victim.”

• “Mr. Jones has a history of aggressive behavior.”

• “There is clear evidence to demonstrate the complainant’s allegations.”

• “The investigator interviewed Mr. Jones again as his credibility was in question.”

Depending on the context of the report, some of the excerpts could be relevant and appropriate, but the phrase “There is clear evidence to demonstrate the complainants allegations” draws an inappropriate conclusion, and “The investigator interviewed Mr. Jones again his credibility was in question” strongly suggest the investigator has preconceived notions about the interviewee.

After reading the excerpts, the defense attorney put the investigator on the stand to go over his handwritten notes from the subject interview. The notes include the following: “He’s lying”; “yeah right”; and “dirt bag.” The final note was crossed out but could be read when the paper was held up to the light.

All three handwritten notes strongly suggest that the interviewed was biased. Such report excerpts and notes have a significant impact, not only on success of a case but also on the reputation and success of the investigator. For investigators, integrity is everything, so they need to avoid both real and perceived biases. Investigators must remain open-minded, stay focused on the facts, and be careful when taking notes, avoiding personal comments or judgements. Comments that indicate bias, or can be misconstrued as indicating bias-can destroy a case and an investigator’s reputation. The investigator’s job is to conduct a neutral investigation and present the facts-not draw out the conclusions.

Investigators need to document what they did as well as what they didn’t do and explain why. If a prosecutor looking at a case would be likely to question why a particular person was not interviewed or why a particular document was not reviewed, the investigator needs to address it in the report. Perhaps the person died, or left the country, or refused to cooperate. Whatever the reason, it must be in the report. Every report should have a section detailing such information as who was interviewed and why, who was not interviewed and why, which documents were obtained and why, and which documents were not obtained and why.

All of Benard + Associates workshops on investigation skills contain components on maintaining fairness and avoiding bias. Click here to view our upcoming workshops.