By

Bob Acton, Ph.D., R.Psych., LPI[1][2]

“Facts are facts.”

Often this phrase implies that there may be no question about the “facts” as they are explicit evidence of the occurrence of an event. Nevertheless, people often will present with different sets of facts in recalling an event. The classic, “he said – she said,” fits in this context.

In the workplace, verbal interactions between staff members can occur in private, where there are no witnesses or supporting documents or communications to substantiate either an allegation or a denial. In these cases, it is insufficient to simply dismiss a complaint simply because there is no supporting evidence. Discrimination, harassment, or criminal actions can take in private with no external supporting evidence.

It is in these situations that a credibility analysis should be conducted to provide weight to the complaint and the various peoples’ statements.

Credibility refers to the trustworthiness of a witness. If there are different versions of relevant events with no supporting evidence, the investigator will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment or violation occurred as many acts may be conducted behind closed doors.

An analysis of relevant case law indicates that the wise investigator should use these seven factors to analyze credibility.

  1. Inherent plausibility:Is the testimony believable on its face? In this context, the investigator must keep an open mind, consider all possibilities, and consider whether the statements possibly make sense?[3],[4],[5]
  2. Story Consistency: The story or claim must not only be inherently plausible, but the entire story and associated information must hold together. The real test of truth of a witness’s story is that it must be in harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in that place and those conditions.[6]. Would a reasonable, independent person recognize that the story made sense?
  3. Demeanour: For example, just because the person is upset doesn’t mean something hurtful has occurred, nor does the absence of strong emotions say that an inappropriate action has not taken place. A witness’s demeanour can be important, but it is a nebulous concept and one that should be approached with high caution.[7]
  4. The motive to falsify: Did the person have a reason to lie? 1 While conducting a credibility analysis, investigators must determine if any of the parties had reason to obfuscate, provide false information, or withhold data, in whole or in part, to support their version of events. This may include a person’s interest or bias; did the witness have a vested interest in the outcome of the case or do they demonstrate bias or prejudice against one party?
  5. Secondary Corroboration: In cases where direct corroboration is unavailable (e.g., no eyewitnesses), secondary corroboration can be helpful to determine credibility. Is there witness testimony by people who saw the person soon after the alleged incidents or people who discussed the events with him or her at around the time that they occurred or physical evidence (such as written notes) that corroborates the party’s testimony?1,[8],[9]The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.  What is essential is how believable the witnesses are and how much weight the investigator thinks their testimony deserves. Memory plays an important role, but memory can be a false companion. See Taylor Beck’s brief article commenting on Daniel Schacter’s (Harvard) seminal work on memory.
  6. Opportunity and Capacity: Finally, it is crucial to determine if the witness was capable of witnessing the event or aspects of the event itself. Was the person able to perceive, recollect, or communicate about the matter? 2,3,7
  7. Disreputable Character: Caution must be used in considering the weight of evidence from disreputable witnesses. Consistent with the “Veltrovec Warning,” investigators need to exercise caution in approaching the evidence of certain witnesses whose testimony plays an essential role in the proof of the accused’s guilt.[10]Investigators should use caution in using evidence from witnesses with an unsavoury character.

In summary, a credibility analysis should be conducted to determine how much weight to assign to witness statements when clear supporting evidence is unavailable. Investigators should use the advice the courts have supplied that compose the seven-factor analysis method.

© 2019 Falcongate Ltd.

[1]. Dr. Acton is President of Falcongate Ltd., a firm providing investigations and conflict resolution services in Western Canada.

[2]The following people from the Association of Workplace Investigators were instrumental to the creation of this document: Don Phin, Pam Ring, Rogelio Ruiz, Kristen Hume Scrimshaw, and Karen Sutherland.

[3] Criteria of the U.S. Equal Employment Opportunity Commission (EEOC)

[4] California Dept of Fair Employment and Housing

[5] 9th Circuit Model Civil Jury Instructions

[6] Faryna v. Chorny, [1952] 2 D.L.R. 354. The British Columbia Court of Appeal noted, at p. 357

[7] G. Anderson, 2016, taken June 2018 from http://disputeresolutionblog.practicallaw.com/who-will-the-court-believe-lessons-on-witness-credibility-from-recent-cases/

[8] California Evidence Code 780

[9] California Civil Jury Instructions #107

[10]R. v. Vetrovec [1982] S.C.J. No. 40; R. v. Sauvé, 2004 CanLII 9054 (ONCA)

Dr. Bob Acton is a Consulting Psychologist, Licensed Investigator, and Executive Coach. He has considerable experience with workplace investigations and HR advisor consulting about psychologically healthy workplaces, mental health in the workplace, and workplace misconduct. He has a wealth of experience with both coaching leaders and consulting on behavioural problems surrounding mental health particularly within the workplace. He integrates that knowledge and experience into investigations and human resource consultations.  He's worked within many industries including oil and gas, education, legal, government, health, transportation, administration, entertainment and travel.