By: Liz Rita
Credibility assessment has long been a subject of interest, and at times heated debate, in the workplace investigations industry. There are cases that cross every investigator’s desk that involve two people, in one room, with no witnesses. Often, the only tool an investigator has in their arsenal to reach a finding in such a case is a defensible credibility assessment. Who does the investigator believe is telling the truth? Who is hiding information? Is this a gut check?
The short answer is, a gut check is definitely not enough. Your “hunch” could be right, but it could just as easily be wrong. People’s intuitive ability to detect deception is wrong 40-60% of the time, according to studies that have been done. Interestingly, studies have shown that people who utilize credibility assessment the most – police officers, judges and other investigative professionals – come to the correct assessment of credibility no more frequently than if they had flipped a coin. That said, police officers/trained professionals had a far greater confidence in their ability to detect a lie (but no more actual success). In a review of 40 studies, researchers found, overall, a 67% accuracy rate for detecting truths, and a 44% accuracy rate in detecting deception (ever hear of the “truth bias”?)
Your gut feeling that something is off is helpful for one thing and one thing only: it is the signal that a credibility assessment is needed. It is never the answer to the question, “Who do you believe here?” In other words, this is your cue to start digging in.
In the same light, if you have a “he-said/she-said situation,” don’t throw your hands into the air in despair. The idea that it is impossible to reach a finding in a “he-said/she-said” case is a myth. Like many similar notions, “he said, she said” originated centuries ago and relies on patriarchal notions. Under old English law, rape prosecutions could not be brought unless every material element of the victim’s story was corroborated by another witness or evidence. Because sexual assaults don’t usually happen in crowded pubs, this rule effectively barred most cases. Victims of any other type of crime — muggings, robberies, physical assaults — could provide the sole testimony at trial. Rape victims were uniquely excluded from the criminal justice system.
For example, a study in 1969 showed that New York City’s corroboration requirement resulted in eighteen rape convictions out of 1,085 arrests.[1] Nevertheless, New York only just abolished its requirement in 1972. Today, most jurisdictions have deleted their corroboration requirement altogether. The reason is self-evident. In many he-said/she-said situations, “he” with the most power wins, and this has historically been the “he.”
We don’t need to succumb to this myth as workplace investigators, and we don’t need to panic when we are faced with this kind of situation. These cases are what separates a great investigator from a person taking notes and going thru the motions. They involve the kind of work professional investigators relish: digging in to figure out what happened where you have only two conflicting narratives about an event.
So how do we do that? How do you “dig in” to evaluate credibility?
Short of a full day training session on the topic, here are five of my top ten tips when you are faced with a nagging sense that something is off, or a “he-said/she-said” situation in the workplace. This month, I’ll start with what you should NOT do (next month’s I will focus on the “Do’s” of conducting credibility assessment):
DO NOT:
- . . . focus on physical demeanor cues.
Do not weigh a person’s eagerness or reluctance to make eye contact with you. Do not focus on whether they are sitting still or are shifting around. And do not read into a person’s sweaty palms or dry mouth. All of these physical factors tell you only one thing: the person is nervous. What rational person would be anything other than nervous when meeting with a workplace investigator? It’s fine to note down the nervousness, but move on to more fruitful ground.
- . . . read into a witness’s “cooperativeness” or apparent openness, versus their anger, dislike of you, or suspicion with the process
No one wants to meet with you when you are a workplace investigator. Period, full stop. For respondents in particular, this situation is threatening – sometimes existentially so. They may lose their job, their career – and for some – the most stable relationship in their lives, if you substantiate a claim against them. This is a highly upsetting context for most people. Some are able to hide that better than others. But catch yourself if you are nodding along with someone who seems to like you, or is just like you. In the same vein, if someone is red-faced, angry, yelling – or even insulting – don’t take it personally. And don’t take it as meaningful in assessing their credibility.
- . . . focus heavily on “plausibility”
Plausibility can come into play in a credibility assessment, as a minor cast player. But never make it the hill you’re going to die on. What is “plausible” for me might be highly implausible (or sound crazy) to you. Plausibility is high susceptible to cultural influences, sex, gender, national origin, race, physical vantage point, individual temperament and at least a hundred other factors we cannot see as workplace investigators. It is fine if plausibility is in your list of factors to check, but make sure it is near the bottom – and that it is never weighted heavily.
- . . . put too much stock in past claims or misconduct
Similarly to plausibility, this is a factor to use with great cautions. While criminal law concepts like “modus operandi” are a thing, in workplace investigations you want to focus on the case in front of you – the conduct that happened this time, and not the fact that a complainant may be a frequent flyer thru the HR suite, or that the respondent has been disciplined in the past. It is okay to mention this as a low level factor, to bolster a finding you are reaching based on other objective criteria. But as with plausibility, this should never be the primary focus of your evaluation.
- . . . forget to check your own biases at the door
As impartial investigators, we pride ourselves on our objectivity. We gather and evaluate data fairly, impartially and without regard to our own personal biases. Yes, you read that right. We all have biases as human beings making their way thru the world. As attorney investigators, some of us may have an advocacy bias – reading and gathering the data thru the lens of what is most favorable for our client. As HR investigators, we may know what the business fallout would be of a substantiated finding, which could sway our weighing of the evidence. As people we may have a bias against people we perceive as “slackers” or “whiners” and in favor of witnesses who are hard workers, or high producers. We like people who like us, and are skeptical of people who clearly do not like us (or what we are doing). The list could go on and on. The point is, don’t delude yourself that you are approaching an investigation with a completely clean slate when it comes to bias. When you feel yourself approaching a witness or evidence with judgement – instead of curiosity – stop. Ask yourself if what you are feeling is a bias, unconscious or not. If it is, note it, and set it aside. In this way, you give both sides their due, and a chance to be heard.
Assessing credibility well is a skill set that takes effort, focus and deliberation. It isn’t an exercise in instinct, but it can be taught and learned. A healthy dose of humility goes a long way for any investigator, as the key to a successful credibility assessment is deliberate curiosity, not self-satisfied judgment.
Next month, what you should do in evaluating witness credibility. Stay tuned!
[1] Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 Yale L.J. 1365, 1370 & n. 38 (1972).