Should You Record Internal Investigation Interviews?

This article is prompted by a piece published by JD Supra and written by Michael Volkov, a former federal prosecutor, but also as I exit a workplace meeting at which a core dispute is what was said at a previous significant (life altering) meeting and reliant on a variety of note-taking methods and interpretations of recollections!

We will link to the article shortly but not before nailing ‘colours to the mast’ and responding “YES”, they should be interviewed as an accurate note-taking process.

That said, much easier to answer ‘yes’ than to subsequently manage the process although there are management strategies and tactics that can be deployed.

But first let me make the vulnerabilities of NOT recording clear.

Memory is vulnerable, it has limitations and frailties. With rare exceptions after circa 30 seconds of conversation (often less), working memory starts to become forensically corrupted and riddled with unreliability. There are undoubtedly occasions when inaccurate note-taking and memory limitations are fairly innocuous and insignificant but what about when a career, livelihood, reputation, or liberty (lives?) are at stake?

The article continues to list some ‘pros and cons’ of recording or not, one ‘con’ being illustrated in the following passage:

“Second, a company’s decision to record its internal investigation interviews eliminates a potential strategic benefit. When conducting an interview, an investigator may rely on intuitive judgments of credibility based on a witness’ mannerisms, body language and quirks. An investigator may exercise his or her professional judgment based on years of interviewing witnesses either as a law enforcement officer and/or corporate investigator to make important credibility judgments. The investigator’s credibility judgment will be set forth in an investigative memo recounting the interview and the basis for the investigator’s credibility conclusion”.

The observation and commentary continues:

“By recording witness interviews, the company opens itself to defense challenges against such credibility determinations. As a result, the company may not be able to rely on credibility determinations, some of which may be critical to resolving conflicting evidence”. 

Now this is a worry! Suggested reliance on ‘credibility determinations’ to inform decision makers and make life-changing decisions?

The only true way to resolve conflicting evidence is to examine it; to internally and externally evaluate it, NOT to rely on biases and flawed science when an individuals future is at stake.

Why the passion? being in the room with a rather naive corporate lawyer who expressed a view that if a workplace interview was recorded the account couldn’t be ‘manipulated’!

In conclusion – the only accurate note-taking is audio and or video recording and there are ways of tactically managing the process.

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Link and acknowledgements to full article here