By: Liz Rita
Last month we talked about many of the ways in which you can get a credibility assessment dead wrong. This cautionary tale holds true in assessing the credibility of your own client’s narrative, just as directly as it impacts a workplace investigator who is trying to assess the facts in a “he-said/she-said” situation. There are many things that can be mishandled, that will lead you quickly in the wrong direction.
So how do you do a defensible credibility assessment? As I noted last month, credibility assessment does not begin and end with your “gut check” or intuition about whether what you are hearing is true, or not. I cannot tell you how many investigative reports I’ve read, where the investigator says something to the effect of, “the complainant was credible on this point,” or “the story respondent provided was believable.” Okay, I hear your conclusion. But why? Why is the complainant credible? Why is the respondent believable? Stating a credibility conclusion without showing how you got there undermines your finding, it doesn’t strengthen it. It leaves the question wide open as to what you considered, what was persuasive, what was important, and what did you discount, in reaching this finding. Is your finding a subjective one? Is it based on objective criteria? Without telling us, we have no idea.
How can this – and other – credibility assessment problems be corrected? A few of the most important tips for a solid and defensible credibility assessment are:
DO:
- . . . show me your math.
Do not give me the answer to the equation without showing me how you got there. Specifically name the factors you weighed heavily in favor (or against) the credibility of a person’s narrative. Describe how you put these factors into your analysis, and why certain ones of them ended up persuading you. If you fail to do this, I cannot accord your credibility assessment any weight.
- . . . develop – and consistently use – a list of objective credibility assessment criteria
It takes only a little effort on Google to figure out what kinds of criteria courts and professional investigators rely upon in correctly assessing credibility. The EEOC has published guidelines on this topic. Jury instructions contain definitions of how evidence is – and is not – considered to be credible in your jurisdiction. And professional associations like the Association of Workplace Investigators offer seminars, webinars and institutes teaching workplace investigators how to develop this tool. The best defense you will ever have if your credibility assessment is challenged, is a defined and objective list of criteria that you used, and applied, in this (and every) case.
- . . . focus closely on what a witness says, and how they say it, rather than how they are behaving in the interview
Human beings, with the exception of those suffering from sociopathy and related disorders, are generally uncomfortable lying. This reality creates a panoply of reactions when a witness is confronted with a question requiring self-incrimination, were they to answer honestly. Oftentimes, a witness will engage in a Herculean effort to distract, evade, convince or intimidate you into moving away from the question, or into accepting a non-answer answer. Some of the tactics can include answering a question with a question, parsing the response and qualifying the denial, giving you a bunch of halo statements (“Why would I hit on my assistant, I am a happily married woman”), changing the subject, ingratiating politeness, using your name a lot, invoking religion, selective memory … the list goes on. Note these kinds of responses, and include them in the credibility assessment bucket as additional evidence.
- . . . consider recording all of your interviews
In the past, recording witnesses was a somewhat controversial practice in the world of workplace investigations. The thought was that witnesses will be uncomfortable being recorded, and will clam up rather than engaging in the process. Today, with the unobtrusive technologies that are available, these concerns are nearly nonexistent. A recording allows you to go back and listen again to a witness’s responses to important questions. It allows you to look for the kinds of word salad responses I just described in bullet 3, and it allows you to listen for pauses and reflect on the cadence and tone of the person’s statements. It is also a great tool in checking for accuracy in what you thought you heard, versus what the witness might actually have said. Of course, it is imperative that you ask permission, and never record a person without their consent. For workplace investigators (and attorneys) this is critical even in one-party consent states, because it is simply unethical to do otherwise.
- . . . remember that credibility assessment is a constellation of the evidence finding, it rarely – if ever – relies upon a single factor
Finally, another important tip is to never rely solely on a single factor. This is a common wall that inexperienced workplace investigators run right into. They find one compelling place where a witness contradicts themselves, and they stop there. Yes, inconsistent evidence can be important in a credibility assessment. But there may be a reason why the witness is saying something different now, than what they said to HR in their intake interview. They may have been scared to be truthful to the company’s internal personnel. They may have just come out of a traumatizing encounter with a coworker and their emotions impacted their ability to recall. We can never be sure that a single factor is so persuasive that it presents a mic drop moment. Instead, as workplace investigators, we must carefully consider all the data available to us, apply our credibility assessment tool to that data, and reach findings based on the totality of that evidence.
Assessing credibility in a defensible way is one skill that sets great investigators apart from mediocre ones. It is a mark of experience, and something that has to be developed over time. But it isn’t rocket science. With a deliberate and objective approach, any workplace investigator can become a credibility assessment expert.
For an in-depth look at this topic, keep an eye out for ILG’s 2025 workplace webinar on credibility assessment, coming your way on a date TBD. Our team is also available for, and frequently provides, trainings to internal staff investigators on this topic.