You are investigating a complaint of harassment. You meet with witness Wally and he tells you the following:
Karen told me her boss Bill gave her a neck rub and gives her daily compliments about her clothing while giving her "elevator eyes." I think Susan may know more about what happened.
Many investigators would dutifully write down what Wally said and then likely disregard or discount the evidence, labeling it “hearsay.” Is this the right decision? The answer is found in understanding the role of a workplace investigator.
What is Hearsay?
Hearsay can be a verbal or written statement, or something non-verbal such as gestures or pictures. Legally, hearsay means: “an out of court statement offered to prove the truth of the matter asserted.” The premise behind the definition is that evidence presented in court must be reliable and subject to cross-examination. Hearsay evidence cannot be used in court unless it falls under one of the many exceptions (under Federal law there are nearly 30 exceptions.) Trial attorneys spend a good deal of time arguing about the hearsay nature of various evidence as ways to advocate and defend their clients.
How does hearsay impact workplace investigators? Should they discount hearsay evidence when deciding whether misconduct occurred? As for the “lay” definition, according to the Merriam-Webster’s dictionary, hearsay is “something heard from another person: something that you have been told.” The prolonged myth is that any hearsay statement or evidence is inherently unreliable because someone did not learn the information first-hand. However, each day we are first-hand witnesses to a variety of actions or words and yet, our memories consistently fail us when we are asked to recount a situation, conversation, etc. Think of when you walked into your office this morning, acknowledged the receptionist and then headed to the kitchen for your morning coffee. What color was the receptionist’s shirt? Eyes? Pants? You were certainly a first-hand witness. However, you may not remember those details because you were not focused on the receptionist or, even more significant, those details were not important at the time. First-hand witnesses are simply witnesses who were present at a particular place and time. There are no guarantees the information they provide is necessarily more or less reliable than someone who heard something second-hand.
The 3 Reasons
First, hearsay evidence is not always unreliable.
Our job as investigators is to ask questions, probe, then probe some more. We are charged with putting the pieces of a puzzle together so we can, hopefully, see the picture of what happened regarding the complainant’s allegations and his or her version of the facts. Or, if no complaint was made, to figure out each witness’s version of the facts and reach a conclusion as to whether misconduct occurred, a policy was violated or whatever the scope of the investigation directed the investigator to investigate.
In the example above, if the investigator determines Wally is a credible witness, they can surmise something may have happened to Karen by her boss Bill despite the fact that Wally did not witness anything first-hand. For example, even if someone was in the room when Karen’s boss Bill gave her the neck rub, this does not mean they saw Karen’s reaction or heard any comments made by Bill. On the other hand, if Wally is a good friend of Karen, he might notice the cadence of her speech when she relayed her story, or picked up on more details and nuances because of their friendship. He could also provide insights into her credibility, his concern and possibly his anger at what his friend had experienced.
Of course, the investigator would also need to assess Wally’s credibility and determine whether his version of the facts are inherently plausible or if he had a motive to lie or exaggerate about the incident. For example, is there any “history” or grudge between Wally and Bill that would affect his credibility? Does Bill supervise Wally? Does Bill make decisions regarding Wally’s job performance evaluations or possible promotions? Has Wally been turned down for a promotion based on Bill’s recommendation?
Whether Wally is correct or accurate regarding the facts during the interview is immaterial; he has provided information for the investigator to continue on the investigation journey to figure out what happened. At this point in the investigation, excluding Wally’s testimony because of hearsay would be premature.
Second, hearsay statements or evidence can lead investigators to relevant evidence.
Investigators must be greedy and accepting of information in whatever form and from whomever is willing to share. Whether information is hearsay is irrelevant when it comes to gathering the information. Too often, investigators (and management) make decisions based on whether the information obtained was accurate or witnessed first-hand. Simply because Wally did not witness what happened does not mean nothing happened to Karen. Wally mentioned someone named Susan who might have additional information and he might also provide a time-line of Karen’s activities after the incident and other facts. His information could lead to additional facts that might substantiate Karen’s harassment allegations or provide clarity in other areas. Remember, the investigator is not the “judge” or ultimate decision maker. The task of the investigator is to fact-find, reach conclusions and report his or her findings.
The key determination is whether the information is relevant. Relevant evidence is what we are searching for in our quest to figure out what happened. Relevant evidence will often lead us to other relevant evidence or help us to determine that something is in fact, irrelevant. Whether the information is accurate is determined during the course of the investigation and significantly, when making findings and determinations about the veracity and credibility of the witness and his or her testimony.
Additionally, hearsay evidence can also be corroborative. If several witnesses recount the same story it can mean each witness heard a similar account, which can assist in determining relevancy, accuracy and credibility. Conversely, the possibility exists the witnesses may be fabricating their story or have their own agenda regarding the facts and outcome of the investigation. Probing into motive will assist the investigator to determine if these similar recollections are tainted.
Third, ignoring hearsay evidence puts the investigator’s credibility at risk.
At the end of the investigation, an investigator must be able to justify decisions made along the way regarding investigation strategy, witnesses interviewed, evidence gathered and ultimately the investigation findings. Ignoring evidence before determining its accuracy and relevance, or. the credibility of the witness, can show bias of the investigator. Once bias is detected, the entire investigation becomes suspect. If the investigator above discounted Wally’s testimony before making further inquiries because the testimony was hearsay, a wealth of information may not have been obtained, corroboration might have been overlooked or other evidence might be missed.
Bottom line, investigators should conduct a thorough investigation. This means evaluating all evidence, following relevant leads and making credibility determinations at the end of the investigation and most importantly, know that hearsay might well provide or lead to relevant information.
To learn more about staying up-to-date on investigation techniques and laws, please visit the Association of Workplace Investigators at www.aowi.org
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