How HR Can Improve Credibility Determinations in Investigations

Internal consistency of a witness’s story and corroboration of testimony are important factors in assessing credibility during workplace investigations, according to a March SHRM Current Events Pulse survey. Inconsistencies are problematic, but they don’t always show the whole picture. That’s one reason corroboration is so important.

Survey Results

In the survey, HR professionals were most likely to say that the internal consistency of a witness’s story (89%) was extremely or very important in assessing their credibility, followed by corroboration of testimony (85%). The witness’s demeanor during the interview (55%) was least likely to be viewed as extremely or very important.

Among HR professionals who conduct workplace investigations that require credibility determinations, 47% said they often or always follow a standardized framework or checklist, while 31% said they rarely or never followed a framework or checklist. Overall, there was substantial variability in HR professionals’ use of standardized frameworks or checklists for credibility assessments. 

Almost all HR professionals (96%) rated their organization’s overall process for making credibility determinations as at least average. More than half (61%) rated their organization’s process as very good (16%) or good (45%), while 35% rated the process as average. Only 3% rated the process as poor, while less than 1% rated the process as very poor.

Build Trust with Witnesses

Organizations looking to improve their credibility determinations should ensure they build trust with each witness, according to Michele Cerezo-Natal, an attorney with Mayer Brown in New York City.

Establishing trust “is critically important because it increases the likelihood of receiving more reliable and robust information,” she said. “Witness testimony is often the cornerstone of an internal investigation. In my experience conducting workplace investigations, it is the rare circumstance where you can resolve an investigation solely on emails, texts, or other written evidence.” 

To build trust, Cerezo-Natal comes to each interview without any preconceived notions about the witness.

“Typically, after explaining my role as an attorney for the company or board, I begin the substance of the interview by telling the witness that I am not an expert in whatever they do, and I would like to start by understanding their role and responsibilities,” she said. This shifts the power dynamic from her to the witness, which tends to get them to let their guard down and be more open. 

If the witness says something that Cerezo-Natal knows is inaccurate, unless it is significant to her investigation to confront them about it, she will let it go. “I find that arguing with the witness tends to have the opposite effect and create distrust,” she explained.

Alexandra Garrison Barnett, an attorney with Alston & Bird in Atlanta, said she tries to build trust with witnesses by explaining that no conclusions have been reached in the investigation and by acknowledging when topics covered during an interview might be uncomfortable, sensitive, or awkward to discuss. 

When an investigation begins, the investigator often has initial thoughts about what happened, said Immon Shafiei, an attorney with Ogletree Deakins in Philadelphia. 

“Acting on those initial thoughts can lead to an incomplete investigation that does not fully dive into the issues presented: Witnesses may be omitted from interviews, not all documents and communications are gathered, and only surface-level questions may be asked during witness interviews,” he cautioned. “By having an open mind going into an investigation, it will allow the investigator to consider all possibilities and conduct a more thorough, complete, and credible investigation.” 

Check for Consistency

The most common sign of an integrity issue with a witness — and everyone interviewed in an investigation is considered a witness — is inconsistency, said Jennifer Shaw, an attorney with Shaw Law Group in Sacramento, Calif. 

“When witnesses don’t describe facts the same way each time they are asked, there’s an obvious problem,” she said.

A witness’s account of events may also seem unlikely when it differs from other witnesses’ accounts and documents or the witness appears to be evasive or tends to exaggerate, said Toni Michelle Jackson, an attorney with Crowell & Moring in Washington, D.C. 

Inconsistent statements are highly relevant to credibility determinations but are not always conclusve, Cerezo-Natal said.

“Sometimes an inconsistent statement is simply the product of a misunderstanding, mistake, or failed memory,” she said. “It is a good investigator’s job to assess the probative value of inconsistent statements based on all of the facts.”

Corroboration

An investigator can assess whether corroborating evidence exists from direct witnesses to events, individuals to whom the complainant reported their concerns after the incident, or supporting documents, emails, texts, or video footage, Garrison Barnett said.  

Cerezo-Natal recalled one investigation where an executive alleged that the CEO was engaged in gender discrimination and harassment, and a specific phone call became a critical piece of evidence.

“The executive and CEO had vastly different accounts of the phone call,” Cerezo-Natal said. “The executive claimed that the CEO had been abusive to her on the call and in recalling the call became visibly emotionally distraught. In addition, we spoke with witnesses who were in the room with the executive during the call and supported the executive’s version.” 

The CEO claimed he was calm, cordial, and respectful to the executive. 

“We found his representations to be highly implausible given what we learned from the other witnesses,” Cerezo-Natal said. “However, we identified a camera that captured the CEO’s side of the conversation, and his account of the call was completely accurate.”

Make the Final Call

Investigators don’t often have “aha” moments, Shaw noted. 

“The key is for investigators to be open-minded and fair,” she said. “They are umpires, and they do need to make the calls. When credibility is the thing that tips the scale one way or the other, then the investigator must be able to explain what happened and why.”