By: Yoyo Rita
When do investigators use credibility assessments? Can an investigator really determine the weight of a witness’s testimony? Is it pointless to even try? (No, obviously not!)
As workplace investigators, we know there are many important nuances to assessing the credibility of a party to an investigation. We often utilize credibility assessments for Complainants and Respondents, though they can be used for any type of witness. These assessments, while complex, are important to master. They can be used to lend more or less weight to a person’s testimony, to cross-analyze contradictory statements amongst parties, and ultimately to reach firm findings under the preponderance of the evidence standard. They are one of many tool workplace investigators use to determine the likely veracity of a set of facts. Here are a few essential categories that comprise a comprehensive credibility assessment:
Objective Plausibility
Determine whether there is a precedent for these allegations, incidents or set of facts. Have such allegations been raised before, even if they weren’t substantiated? What is the organizational setup that could allow the allegations to occur?
Review neutral witnesses’ testimony to gauge their assessment of the individual’s credibility (e.g., an employee in another department who reports to a different leader). Understanding your party’s positionality in relationship to the investigation will allow you to streamline your analysis of the individuals that comprise an interconnected organization.
Use common sense! Qualify and quantify your data to determine its objective plausibility. For instance, an allegation of wage theft in excess of $1 million is objectively less plausible than a wage theft claim of $5,000. However, both could be substantiated, based on context (day trader vs. truck driver), timing (over ten years vs. over 6 months), and the quality of corroboration (three unreliable outcry witnesses who are known to gossip vs. one reliable, neutral party who works frequently with both the Complainant and Respondent).
Statement Analysis
Statement analysis is the careful, impartial review of witness testimony based on EEOC guidance and industry expertise. Reliable statement analysis relies on the latest science in trauma-informed, peer-reviewed psychology and neuroscience. Though I am neither a psychologist nor a neuroscientist, ILG’s statement analysis system is supported by both of those fields, as well as decades of expertise and alignment with the EEOC best practices. Some of the factors (among many) to consider when rendering a statement analysis of a witness’s testimony includes:
- Fails / refuses / reluctant to answer the question
- Fails to deny directly/absence of specific denial
- Convincing statements – lies of influence
- Answers a question other than the one asked
- Hedging/parsing
- Qualified denial/answer
- Changes the subject
While far from a comprehensive list, this serves as a good jumping off point. Remember, statement analyses rarely rely on simply one factor to determine the likely credibility of a witness.
Corroborating Evidence
Corroborating evidence is crucial when rendering a credibility analysis. No matter how credible an individual may be on their own, allegations gain credibility when others can provide shared observations, documentation, and experiences. Consider the following:
- Is there documentation to support the allegations? Documents are king! Text messages, emails, audio recordings, public records, contracts, and even social media information should be relied upon when seeking out corroborating evidence. Generally, the paper trail does not lie. Which leads me to my next point:
- If it is electronic documentation, can it be forensically verified? In high-stakes investigations, it is crucial to verify electronic data before incorporating it into your data analysis and findings.
- Who, if anyone, supports the Complainant’s allegations?
- What relationship or connections do those witnesses have to the Complainant? Their friends, supervisors, or coworkers? Relationships can sometimes inform bias.
- Or to the Respondent? Relationships to the Respondent are just as important to understand when analyzing the quality and likely veracity of corroborating witness testimony.