He Said, She Said: How to Investigate Unwitnessed Cases

Listen to the full episode with John Farren on Youtube or Spotify

So.. what does ‘he said, she said’ even mean?

A female patient accuses a male cardiologist of insensitivity after he makes a comment during a private check-up. A baseball player accuses another player of verbal taunting and discrimination when no one else is around. These are cases of ‘he said, she said’, and it is one of the most common scenarios that investigators struggle with. 

‘He said, she said’ cases occur when two parties give differing accounts about what happened and there is no independent witness to give evidence. For many supervisors, HR managers, and investigators, ‘he said, she said’ cases are among the most challenging – and the most likely to lead to poor outcomes. 

For investigators in this situation, judging someone’s credibility on their demeanor alone is completely unreliable. In fact, there are studies that show that most people (including judges and lawyers) think they’re good at judging the credibility of one’s story. It turns out, they are very poor at it! This is why it’s so important to use a credibility assessment to better assess whose accounting of the story is more credible. 

To help explain how to manage these specific situations as an investigator, and assess credibility, Dean Benard sat down with John Farren who is a deeply experienced workplace investigator and employment lawyer, and Director of Farren Mcrae Workplace Lawyers & Consultants.

Dean and John discussed the three main points of failure for investigators in ‘he said, she said’ scenarios:

• Failure to consider whether there are other relevant sources of evidence.
• Only conducting superficial interviews. 
• Concluding with irrational or illogical analyses of evidence. 

Let’s start with the failure to consider other sources of evidence.

Failure to consider other sources of evidence

The failure to consider whether there are other relevant sources of evidence is what John calls the hidden sources of evidence. Investigators often assume that because there is no witness, there is no corroborative evidence. However, there are often other sources of evidence that will either be direct evidence that either proves or disproves the allegation, or circumstantial evidence that can be given appropriate weight. Hidden sources of evidence may be from: 

• Public footage
• Call logs from landlines
• Text messages and their metadata
• Emails and calendar entries
• Contemporaneous notes that might have been made by the participants in the investigation close to the time that the events happened
• Photos, videos, or voice memos
• Swipe access cards (swipe access logs can be very powerful evidence to either prove or disprove, in terms of placing the people at the place where the alleged event was said to occur).
• Confidant witnesses (to be discussed in a separate article)

These are common sources that investigators should at least be considering, to see what types of evidence might be available based on the scenario. As Dean says, “Always consider all possible sources of information – you never know where useful evidence can be until you look for it”.

Only conducting superficial interviews 

Superficial interviews will not give an investigator the appropriate information to truly assess credibility. These are interviews that don’t test the reliability and plausibility of evidence, and just skate across the surface of the issues rather than delve into an interviewee’s evidence in a sufficiently deep way. Dean mentions this in his Take Five YouTube series: “The little things in an interview truly make a difference. You need to really dig down into the details of the evidence to explore the who, what, when, where, and how.” 

Asking the details of the following 5 w’s can be enough to start testing the credibility of an interview. Including questions such as: 

• What happened?
• Where did it happen? 
• Who did it involve?
• When did it occur? 

If sufficiently conducted, interviews can also give investigators much more information than just the 5 W’s. Including, for example:

• Volume of voice
• Tone of voice
• What happened before or immediately after an incident
• Positioning of the parties (whether they were standing or sitting, whether doors to meeting rooms closed or shut, who might have been sitting outside the meeting room of an unwitnessed event, and who might have either heard what occurred in the room or witnessed the aftermath)

Finally, as investigators begin collecting evidence, they can stress test its credibility by considering the following: 

• Is the evidence reliable? 
• Is it plausible? 
• What do the parties to the matter say about their own behaviour typically and how does that compare to witness accounts. Are there any parallels to the alleged behaviour under investigation?   
• Is it externally consistent? Is the evidence received from the witness consistent with other sources of evidence that bear upon it including documents or previous statements made by the person?
• Is it internally consistent? Is the person’s story staying consistent with their own story over time and is it given in a credible way? 

Unless the investigator digs down into the details, they don’t have the key information for a credibility assessment. 

Here is what workplace or regulatory investigators should not do. Do not cross-examine people. “This is particularly a problem for litigation lawyers that go into workplace investigations.” John points out. “Investigators should still test the evidence and ask them to explain any inconsistencies that are apparent. For example, if you think something that is being put to you appears to be inherently improbable or unlikely, then I would always put that as an observation to the interviewee to give them a chance to comment on that. When you do all these things, then you’ve got a lot of rich material to refer to when it comes to undertaking those credibility assessments that need to occur”. Properly conducted interviews will help investigators build a credibility assessment in the analysis stage so that the allegation can be effectively substantiated or not.

Irrational or illogical analyses of evidence 

The third point of failure in ‘he said, she said’ cases is a superficial or illogical analysis. “I tend to see this in many reports,” Says John. “either little or no summary of the key evidence so that the reader of the report doesn’t know what evidence the findings are based upon, little or no analysis, analysis that is illogical (for example, they jump from A to Z without anything in between the two steps), or no credibility assessment.” An investigator should place themselves in a position where they can decide who ought to be believed when evidence is in conflict. There must always be some rational basis for drawing that conclusion.

Another error some investigators make is preparing a report that does not make a clear finding about the allegation. John refers to this as the ‘no-finding finding’. This occurs when the investigator can’t come to a position that the allegation is either substantiated or not substantiated because there is no direct evidence. As Dean says, “Investigators don’t have the option to say they can’t make a finding. They must always weigh the evidence on a balance of probabilities. Whichever way the scale tips – even slightly – points the investigator to the appropriate conclusion”. 

Closing an investigation as inconclusive and taking no further action, can create a risk of liability for employers. John highlights, “Tribunals and courts make these types of assessments every day of the week and in fact, if you think about criminal trials and findings of fact, they are made on the highest standard of beyond reasonable doubt.”

Bottom Line

In the absence of any independent witness, the resolution of a workplace complaint often depends on a determination by the investigator as to which party is more credible. By conducting a thorough review of the evidence using good investigative techniques, such as ensuring that alternative sources of evidence are considered, interviews are rich with detail, and analyses are logical and contain a credibility assessment, the investigator should be in a better position to make this determination.

 

About Dean Benard

Dean has been a professional investigator for almost 30 years, including roles as a police officer, regulatory investigator, Investigations manager, and has run Benard + Associates since 2003 where he and his team have conducted thousands of investigations in regulatory and workplace matters. Additionally, he is an advisor, consultant, coach, and leader in the investigations and conflict resolution communities.

His background educationally includes a nursing diploma from Fleming College, yes he was first a registered nurse working in critical care and research, before he entered the investigative field. He holds a Bachelor of Arts in Health Administration and Ethics from York University, a Masters of Laws in Alternative Dispute Resolution from Osgoode Hall Law School, and has a postgraduate certificate in Diversity and Inclusion from Cornell University. 

 

About John Farren

John is the co-founder of Farren McRae Workplace Lawyers and Consultants located in Brisbane, Australia. He has extensive experience in all aspects of workplace and employment law; he’s advised and represented numerous employers and employees across the public sector, not for profit statutory authorities, and private sector. John’s area of special interest and experience lays in dispute resolution through both advocacy in the courts and tribunals and skilled negotiation. John is also a trusted legal advisor to both employers and employees in relation to a wide range of employment law issues in addition to his legal experience John has a depth of experience in undertaking complex workplace investigations related to misconduct, corrupt conduct, bullying, and workplace harassment, as well as serious disciplinary matters including code of conduct breaches. He’s also dealt with grievances, discrimination, and workers compensation issues. John also has an impressive record of volunteer and pro bono work through the board of the Aboriginal and Torres Strait Islander legal service limited, and previously serving as an independent board member on the national board of management of the Salvation Army’s Employment.