Truth or Perception in an Investigation?

I often hear investigators stating that they are searching for the truth, which is a noble quest, but what is the truth? and what happens when one person’s truth is not aligned with another person’s truth?

Some investigations involve external non-human sources of information/evidence, such as accounts, emails, messages, access logs etc. though even CCTV depends on the angle the camera recorded the events at.

Some of the more difficult investigations are when the only available evidence is that of human recollection of events. When a person’s perception of events forms their truthful recollection of what happened. This perceived truth can differ from another person, witnessing the same events, perception and what they believe to be the truth.

Perception is a complex and dynamic process, a result of the individual’s brain active interpretation of sensory information, it is subject of attention, expectations and context and is based on prior knowledge or situations never experienced before. In other words the eyes are not cameras the ears are not microphones and the brain is not a simple passive recording device.

It is very unusual (though not unknown) for a person to tell an outright lie during an investigation – a lie is defined as making an assertion knowing or believing it to be false with the intent to deceive or mislead another. In other words a deliberate act. For decades we have known of the fallibility of eyewitnesses based on their perception of events forming their believed truth – many miscarriages of justice in the criminal courts have been the result of flawed eyewitness evidence, in which the eyewitness firmly believed that they were telling the truth at the time they gave their evidence, only to be contradicted later down the line by DNA evidence etc.

So is the investigator’s quest for the truth part of the problem?

Investigators are human and subject to biases like everyone else. If the investigator believes the first piece of information (usually the report made by the reporting party) to be factually true rather than the persons perceived truth, they are exposing themselves to  anchoring bias, taking the first piece of information as fact and subconsciously/consciously tailoring everything that follows to support that first piece of information.

The investigator must recognise bias in themselves and actively check against allowing it to influence their investigative thought process. A lot more difficult than it seems.

Why is this so important?

Due to several factors including lack of trust in the criminal justice system, increased and open reporting channels, legislation (Workers Protection Act) there is a rise in the reports of harassment and sexual misconduct made to workplaces/study places.

Managing expectations

The investigation process should be separate from the initial disclosure.

During the initial disclosure process the options available to the reporting party – such as going to the police and the limitations of a workplace/study place investigation should be discussed and the reporting party given the information and time  needed to make an informed decision of what they want to do. Welfare support and signposting should be outlined and made available

Unsurprisingly those reported harassment and sexual misconduct incidents take place in private between two humans. There may be information/evidence about events before and after to assist the investigator but no evidence to the actual events.

The investigation must be neutral and treat each party involved equally. The investigator’s role is to gather all relevant information/evidence that supports or contradicts the reported events.

The investigator’s aim is to gain a full uncontaminated account of each person’s perception of the events that took place in private, particularly where consent or lack of consent is the core issue. In cases such as this the investigator must be properly trained and experienced in investigative interviewing and where applicable, able to recognise the impact of  trauma on memory and the interview process.

In the context of a non-criminal investigation (workplace/study place discipline investigations) where the standard of proof is the balance of probabilities,  the investigators role is to seek to establish which recollection of events is more likely. The investigator should also remember that the burden of proof is with the organisation not the individual under investigation.

Investigations are not easy and although employers normally recognise their duty of care to the reporting and responding party, sometimes their duty of care to the investigator is overlooked, in that they do not equip them with the skills necessary to carry out the role. Investigations of this nature should not be allocated on the basis of seniority in an organisation.

A search for the truth?

The investigator must have the knowledge and training to understand that two people can witness the same event and have differing recollections, and that neither of them are likely to be lying, and both of them are likely to believe that they are telling the truth.