He Said / She Said Establishing Credibility Without Witnesses

Transcription

1 He Said / She Said Establishing Credibility Without Witnesses NAECP Focused Track Advanced #4 Presented by: Billie Pirner Garde, Esq L Street, N.W., Suite 00 Washington, D.C (202) Direct Evidence Documents, pictures and videos, eye witnesses Indirect Evidence Evidence that leads to an obvious conclusion, beyond reasonable dispute Credibility Determinations Who is telling the truth about an incident which does not have any direct or indirect evidence? The role of the investigator is not only to gather available evidence but also to make the difficult credibility determinations that will reveal where the truth lies. Q. Does your program require or prohibit credibility determinations by ECP investigators? Clifford & Garde, LLP 1

2 Conducting a workplace investigation requires the investigator to re examine their own biases; Consider a second interviewer to be present to also write notes and observations; Keep calm and objective and in a neutral frame of mind throughout the investigation especially when interviewing witnesses; Write observation notes (different than conclusions) immediately after interview reflecting on nonverbal clues observed during investigation; Later review again all statements and notes. 1. Witness Demeanor 2. Witness Statements (Internal Consistency) 3. Chronology of Events (External Consistency) 4. Contemporaneous Indicators of Truthfulness or Untruthfulness. Motive to Lie: History of relationships (if any); Consequences of the truth; Other Factors Witness Demeanor Witness Demeanor Clifford & Garde, LLP 2

3 1 How a witness presents himself can be invaluable when judging the truth of conflicting/contradictory versions of the story. 1. Observe baseline question behavior; 2. Observe reaction to investigative questions in comparison to baseline questions; 3. Was the witness friendly, hostile, extremely emotional? 4. Was the witness forthcoming or did you have to pry the information out?. Were the answers indirect or answered directly? 6. Was there a change in eye contact or body language? 7. Was the story plausible? Witness Statements (Internal Consistency) Witness Statements (Internal Consistency) 2 A good way to get a witness to potentially contradict himself is to ask about the same events, requesting plenty of detail multiple times. (During the initial interview and the follow up.) Give the witness an opportunity to explain the contradictions and evaluate whether the explanation makes sense. Also, compare the details provided from each witness. Clifford & Garde, LLP 3

4 Witness A Witness B Witness Statements (Internal Consistency) cont d Allegation/topic Statements Demeanor Consistency History/Motivation Evidence Chronology of Events (External Consistency) Chronology of Events (External Consistency) 3 The chronology of events provides insight on the accuracy of a witness s account. How does the timing of events recounted by the witness compare to the timing recounted by others? Is the difference in timing significant? Does the witness s account of the events seem to be an outlier? Clifford & Garde, LLP 4

5 3 Compare the differing accounts to the objective physical evidence (e mails, letters, notes, expense reports) gathered from witnesses, security access computers, IT department, and any other source; What are the facts created by all the objective evidence? Contemporaneous Indicators of Truthfulness or Untruthfulness Contemporaneous Indicators of Truthfulness or Untruthfulness 4 Statements to others or lack thereof; Duty to report incident not followed; Variation from previous experiences; Written s, texts, notes, telephone calls, communication of consistent information; Logical or illogical actions under the circumstances. Clifford & Garde, LLP

6 Motive to Lie Motive to Lie 1. Was there any bad blood between witness and complainant? 2. Were there similar incidents in the past between the two that went unreported? 3. Is there a reason for the witness to cause harm to the other revenge, humiliation, honor? 4. Has the accused said or done anything previously which makes it more likely that the facts of the current circumstances actually occurred? What, if any, are the potential consequences of a witness telling the truth in the case under investigation? Criminal or Civil Liability Loss of employment or employment opportunity Personal consequences Loss of credibility or honor Exposure of personal secret Clifford & Garde, LLP 6

7 There may be no direct witness to the incident or event itself but there may be people who saw that the complainant was upset or spoke to the person shortly after the alleged incident or event. These witnesses can have a big impact on an individual s credibility, especially if the witness is not a close friend, family member; therefore, not someone who would typically lie for the witness. Determining Credibility By A Jury In the earliest common law, the jurors were only witnesses, testifying on the basis of their knowledge of the events and what was reported to them. The jury trial in this country was justified by the assertion that jurors were from the same locale and already knew the witnesses and their reputations for character and veracity. Today, jurors are selected on the basis of their lack of familiarity with the dramatis personae, and a judge s personal knowledge of the litigants can create an appearance of impropriety requiring recusal. In today s trial, the determination of credibility is suppose to be based solely on what takes place in the courtroom by fact finders who have little or no knowledge of the parties, the witnesses, or the events. In effect it is a process of studied ignorance. See ABA Practice Essential, Judging Credibility, John Kane Clifford & Garde, LLP 7

8 Hearsay is a statement offered to prove the truth of the matter asserted. It is NOT admissible, in court, unless one of the exceptions apply. Hearsay Exceptions make certain out of court statements admissible for their truthfulness. Some examples follow. A. Excited Utterance B. Statements for Purpose of Medical Diagnosis or Treatment C. Statement Against Interest D. Record of / Absence of Regular Activity Clifford & Garde, LLP 8

9 A A statement made under stress is generally admissible even though it is hearsay, if it s offered by someone who only heard the other person speak. The statement does not have to be made in the heat of the moment, as long as the speaker was still under stress when it occurred. Statements like that man stole my purse! or help, I m dying! generally fit into this exception. Statements for Purpose of Medical Diagnosis or Treatment B Most statements made for medical treatment, like I can t feel my legs or I m allergic to penicillin are admissible, on the theory that most people will tell the truth about their symptoms when their lives or health are at stake. However, statements to health care providers that discuss fault or causation, like I wouldn t be in so much pain if she had been paying attention to the traffic light are generally not admissible. C A statement that could potentially hurt the person who made it is often admissible despite being hearsay, because courts assume that a person would not make such a statement like our product is defective or I was so busy texting I didn t even see you in the crosswalk! unless it were true. Clifford & Garde, LLP 9

10 D A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by a person with knowledge, and kept in the regular course of business activity / or to prove the nonoccurrence or nonexistence of the matter. The U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors: It s purpose is to provide guidance regarding employer liability for harassment by supervisors based on sex, race, color, religion, national origin, age, disability, or protected activity. If there are conflicting versions of relevant events, the employer will have to weigh each party s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include: Inherent plausibility: Is the testimony believable on its face? Does it make sense? Demeanor: Did the person seem to be telling the truth or lying? Motive to falsify: Did the person have a reason to lie? Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, The U.S. Equal Employment Opportunity Commission, EEOC, Number , 6/18/99. Clifford & Garde, LLP 10

11 Corroboration:Is there witness testimony (such as testimony by eye witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party s testimony? Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, The U.S. Equal Employment Opportunity Commission, EEOC, Number , 6/18/99. Past record:did the alleged harasser have a history of similar behavior in the past? None of the above factors are determinative as to credibility. For example, the fact that there are no eye witnesses to the alleged harassment by no means necessarily defeats the complainant s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again. Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, The U.S. Equal Employment Opportunity Commission, EEOC, Number , 6/18/99. Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator s report. The parties should be informed of the determination. Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, The U.S. Equal Employment Opportunity Commission, EEOC, Number , 6/18/99. Clifford & Garde, LLP 11

12 In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eye witness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above. Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, The U.S. Equal Employment Opportunity Commission, EEOC, Number , 6/18/99. If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring. Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, The U.S. Equal Employment Opportunity Commission, EEOC, Number , 6/18/99. He Said / She Said Establishing Credibility Without Witnesses NAECP Focused Track Advanced #4 Presented by: Billie Pirner Garde, Esq L Street, N.W., Suite 00 Washington, D.C (202) Clifford & Garde, LLP 12