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Internal Investigations — Assessing Witness Credibility

As experienced investigators know, an investigation into allegations of harassment, discrimination or other misconduct may lead to a so-called “he said/she said” scenario, possibly leaving the investigator in a quandary as to the investigation’s outcome. This situation may indeed lead to a determination that the allegations are unsubstantiated. However, an investigator should not shy away from making credibility determinations when possible, even when it is one person’s word against another.

Here are a few practical pointers in assessing witness credibility:

  • Selecting the Investigator. To begin with, selecting an objective, trained investigator with no skin in the game (real or perceived) is essential. The impartiality or credibility of your investigator should not be in question. Depending on the size and structure of your organization, this may require retaining an outside investigator. Indeed, the investigator may become a witness in subsequent proceedings, so this may be something you want to consider on a case-by-case basis depending on the situation and the likelihood of future proceedings.

  • Assessing Credibility. Determining witness credibility is something our justice system asks jurors to do every day – to reconcile conflicting testimony and decide who to believe. There are often multiple factors to consider in assessing a witness’s credibility. Even when confronted with the “he said/she said” dilemma or otherwise conflicting stories, employers should attempt to make judgment calls. Some factors to consider are:

a. Does the witness have a history of being untruthful?  b. Does the witness have a motive to be untruthful or less than candid and forthcoming?

c. Is the witness’s story plausible?

d. Does the witness have a stake in the outcome of the investigation, e.g., a personal relationship with the victim or the accused which could create a

e. Can the witness’s story be corroborated by other witnesses or evidence, e.g., documents, photographs, recordings, etc.?

f. Has the accused employee engaged in similar behavior in the past, e.g., is it consistent with prior behavior? The investigator, however, must be careful not to pre-judge guilt before conducting a thorough investigation.

g. Does the witness “appear” credible? Albeit somewhat subjective, it is proper to assess a witness’s demeanor, e.g., body language, eye contact, nervous,  defensive, shocked, relaxed, evasive, argumentative, etc.

  • Documentation. If credibility determinations are made, e.g., that the witness is truthful, or not, it is important that the investigator document the basis for the determinations. The investigator should take detailed contemporaneous notes of any observations or behaviors which led to the credibility determinations. The goal is to identify (and document) the factors which caused the investigator to believe, or not believe, a witness’s version of events.

In the end, you may be unable to reconcile conflicting information and, therefore, conclude that the allegations are unsubstantiated. However, an investigator should consider the above factors, among others, and try to make credibility judgments when possible. A thorough investigation requires it.

© 2020 Foley & Lardner LLP


About this Author

Philip B. Phillips, Foley Lardner, Automotive Industry Lawyer, Labor Rights

Philip B. Phillips is a litigation partner with Foley & Lardner LLP and chair of the firm’s Litigation Department in Detroit. He is a member of the Labor & Employment Practice and Automotive Industry Team, and also serves as the professional responsibility partner for Foley’s Detroit office. He counsels and represents business clients across the country in all aspects of labor and employment law, including FLSA wage and hour collective actions and multi-plaintiff employment litigation defense, non-competition and trade secrets matters, collective bargaining and...