Public Interest Investigations

Veracity Blues

Daily Journal Newswire Article
November 07, 2001
Author: Susan Ortmeyer, PII Legal Director

VIEWPOINT: One of the most difficult tasks for an investigator is separating the truth from the lies and half-lies. How does one know whether a person is lying?

Credibility determinations are a critical part of workplace investigations. Yet employers are often reluctant to make judgments about the failure of a witness to be truthful, even though employers are permitted to use credibility findings to resolve conflicts in testimony. See Silva v. Lucky Stores Inc., 65 Cal.App.4th 256 (1998). Indeed, an employer who neglects credibility determinations risks a finding that its investigation was inadequate. See Kestenbaum v. Pennzoil Co., 108 N.M. 20 (N.M. Sup. 1988).

Federal-sector employment law provides a useful road map for assessing credibility. The federal government's Merit Systems Protection Board, which decides federal employees' appeals of terminations and disciplinary actions, explicitly requires its administrative judges to resolve issues of credibility.

The administrative judge first must identify the factual questions in dispute, then summarize all of the evidence on each disputed question of fact. The judge must state which version the fact-finder believes and explain in detail why the chosen version was more credible than the other version or versions of the event. Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987).

Seven factors bear on credibility determinations in Merit Systems Protection Board cases.

Demeanor

A judge or a jury has the opportunity to observe a witness's facial expressions, tone of voice and body language. Workplace investigators have the same opportunity and, therefore, may consider demeanor in evaluating credibility.

Investigators sometimes leave an interview with a gut feeling that a witness was untruthful. Providing reasons to support that gut feeling can be a challenge, however.

Psychological research has shown that some of the behaviors we normally associate with lying, such as shifty eyes, restlessness or nervous blinking, are not present at a significant level when speakers are deceptive. In fact, some of these behaviors decreased when the speaker lied. Blumenthal, Jeremy A., "A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility," 72 Neb.L.Rev. 1157 (1993).

Instead, changes in demeanor may be more significant. For example, a confident witness who loses his poise when confronted with a document he cannot explain loses credibility. This is particularly so if the loss of poise is accompanied by other indicators such as evasiveness, a sudden lapse of memory, defensiveness or hesitance. See James P. Timony, "Demeanor Credibility," 49 Cath.U.L.Rev. 903, n.45 (2000) (citing comments of former National Labor Relations Board Chief Administrative Law Judge David Davidson).

The Opportunity and Capacity to Observe the Event or Act

Was the witness in the right place and time to observe the event or act at issue? Was the witness close enough to hear what was said and see what happened? Where was the witness standing? What were the lighting conditions?

These types of questions establish whether the witness had the opportunity to observe what happened. Investigators often neglect to unearth and report the fine details that can increase or decrease a witness's credibility in this regard.

For example, a report stating that a witness overheard a conversation carries less impact than a report stating that the witness overheard the conversation because she was 2 feet away in the next cubicle and the parties were yelling at each other.

A witness's capacity to observe refers to the witness's ability to understand what was seen and intelligently to narrate it.

For example, a witness with no knowledge of computers might not have the capacity to relate intelligently the substance of a technical meeting of a group of software engineers.

Prior Inconsistent Statement

A prior inconsistent statement can decrease a witness's credibility by showing that the witness says different things at different times and, therefore, is untrustworthy. However, the investigator must weigh the importance of the inconsistency and determine what may result from poor recollection or perception.
For example, inconsistent statements about when a meeting occurred usually are not important to the investigation and could result simply from poor recollection. Inconsistent assertions about whether a person uttered a flagrant racial slur, on the other hand, likely can be chalked up to untruthfulness.

Contradiction by or Consistency With Other Evidence

A competent investigator never takes a witness' statement at face value but actively searches for evidence that either corroborates or contradicts that testimony.

For example, a manager who claims that she suspended an employee for excessive tardiness loses credibility if the investigator locates time records that indicate the employee consistently arrived at work on time. The converse is true as well: The manager's credibility rises if the time records are consistent with her testimony.

Bias

Workplace investigators always should be on the lookout for evidence of bias when assessing credibility. The investigator must be alert to relationships, circumstances and influences that may cause the witness consciously or unconsciously to shade his or her testimony. The existence of bias can be ascertained through questions examining the working relationships and personal or social relationships, if any, between a witness and a party.

Conversely, lack of bias may increase a witness's credibility.

For example, retired employees with no personal ties to either party are often the most credible witnesses because they have no interest in the outcome of the investigation. Because the employment relationship has ended, they are not susceptible to the workplace pressures that current employees may face.

Similarly, credibility increases when witnesses testify against their self-interest.

For example, employees who testify against management when they have no interest in the outcome of the investigation are often believable because they potentially have put their own jobs in jeopardy by their testimony. The only motive to do so would be fidelity to the truth.

Inherent Improbability

Fact-finders, whether judges, juries or investigators, are allowed to apply common sense in assessing the evidence. Investigators must consult their own experience with the real world and human nature to determine whether the witness' story is plausible. However, in most cases a negative credibility finding should not be based solely on the improbability of a witness' story without some additional indication of untruthfulness.

Character

Finally, an investigator may look to see whether witnesses have characteristics that render them more prone to testify untruthfully.

For example, if the witness has lied on previous occasions or has a poor reputation for truthfulness among co-workers, it may diminish the witness's credibility. Conversely, if the witness is known by co-workers to be honest and truthful, that may increase credibility.

Failure to assess credibility in "he said-she said" sexual-harassment complaints or in other cases in which witness accounts vary, can leave an employer open to legal challenges later. Employers should ensure that investigators are trained to arrive at and report reasoned credibility assessments.

Susan Ortmeyer is the legal director at Public Interest Investigations Inc. in Los Angeles.

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