While you’re here, you may wish to attend one of our upcoming workshops:
Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
For want-to-be or fledgling workplaces investigators, no subject is more difficult than considering how to assess credibility. In our experience, while most new investigators can easily grasp the concept of “credibility” and recognize when they find or do not find a particular witness to be credible, they often struggle to translate this understanding into writing. In other words, they have a hard time expressing their conclusions about a witness’ credibility in a way that is persuasive, fact-based and legally-defensible.
To refresh, according to R. v. Taylor (2010 ONCJ 396 (CanLII)):
“’Credibility’ is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.” [emphasis added]
While it may be difficult to articulate the reasons why you did or did not find a person credible, it is critically important that investigators do so. If an investigator does not back up their statements about credibility with adequate description and examples, they run the risk that the reader will fill in these blanks for them. In other words, the reader could conclude that the investigator based his/her conclusions about credibility on biases, preconceptions, and other unfounded—and indefensible—factors, or simply not understand how the investigator reached this conclusion at all.
For this reason, and others, new investigators should not rush through or gloss over the credibility assessment portions of their reports. These assessments deserve (and require!) careful thought and consideration. Crafting a well-thought-out and well-written credibility assessment is a skill that investigators hone over time.
That said, we can appreciate that writing such an assessment as a new investigator can be more challenging when you do not have the benefit of experience and a list of appropriate descriptors on the tip of your tongue. To help with this, we have done a deep-dive into Canadian case law and our own investigation reports to extract and compile the following lists of words and phrases that are commonly used by in credibility assessments:
Words and phrases that relate to credibility…
- Without hesitation
- Frank, frankness
- Candid, candidly
- Confident, confidence, confidently
- Emphatic, emphatically
- Had the “ring of truth”
- Conceded weaknesses
- Consistent, consistencies
- Detail, specificity
- No reason to mislead and/or overstate
- Without embellishment, did not embellish
- Without exaggeration, did not exaggerate
- Balanced, spoke in a balanced manner
- Measured responses, provided measured measures
- Unshaken, not shaken
- Corroborated by
- Supported by
- No motive to lie or embellish
- Took ownership of
- Conceded information that was not positive or helpful to their position
Words and phrases that relate to a lack of credibility…
- Digressed, digressions
- Exaggerated, exaggerative, exaggerations
- Dismissive, dismissed
- Had an “axe to grind”
- Wandering, wandered, prone to wandering
- Inconsistent, inconsistencies
- Contradictory, contradictions
- Colluded, collusion
- Lack of detail, specificity
- Illogical, not logical
- Incoherent, not coherent
- Overly verbose or long-winded
- Did not provide explanation, lack of explanation
- Did not provide context, lack of context
- Seemed rehearsed
- Minimized, attempted to minimize
It goes without saying that these words and phrases should only be applied where appropriate given your own personal conclusions about a particular witness’ credibility. As always, you should use examples from the investigation to support your characterization of a witness’ credibility.
For your reference, here are a few examples from our reports (with any identifying details changed for confidentiality reasons):
“With respect to this allegation, I prefer the evidence of the complainant over that of the respondent. Although the respondent admitted to using pet names and playful name-calling in the workplace, I find that it is more likely than not that he engaged in name-calling which went further than this and which could be described as offensive. In particular, I did not find the respondent forthcoming with respect to the nature of the name-calling in the work environment and that he tried to downplay it. I find that the respondent dismissed the phrases alleged without trying to understand them better and that he exaggerated his relationship with his co-workers to cast himself in a more favourable light (i.e. by referring to them as family members).
“While I found the complainants well-intentioned in providing their evidence, I did not find them fully credible. I found that the complainants were at times exaggerative and speculative in providing their evidence to me. I also found that all of the complainants attributed nefarious intentions on to the respondents without providing the evidence to support their assertions. These parties’ version of events was also incomplete in ways that I found were aimed to diminish their involvement in incidents of which they were complaining. Finally, when compared with the documentary evidence (i.e. emails) available, the complainants’ version of events seems, at times, to be a mischaracterization or misunderstanding of the events.
On the other hand, I found the respondents to be quite credible in the version of events that they provided. In addition to their evidence being largely consistent with others’ recollections and the documents provided, I found that they provided their evidence in a clear manner, and refused to speculate when recollecting events and incidents. I found it compelling that the respondents conceded to certain information that was not overly positive for their position. For instance, the respondents all admitted to raising their voices or making certain statements that cast them in a negative light.
As a result of the above assessment, to the extent that credibility is at issue, I have preferred the version of events as described by the respondents to that described by the staff complainants, unless specifically noted in my factual findings.
“I generally found the respondent to be more candid as far as his evidence was concerned. He willingly admitted conduct on his own behalf, even when this was not in his own best interests. This was in marked contrast to the complainant who would make no such admissions in respect of her own behaviour or the possibility of giving the respondent the benefit of the doubt. The complainant also suggested to me that if [the other witnesses] corroborated the respondent’s evidence, I should discount their evidence because of their personal relationship with him and their consequent desire not to want to be the next target of his hostility. Again, this was not borne out in my interviews. Both [the other witnesses], at various times, provided me with evidence which was not supportive of the respondent and which corroborated some of the allegations herein. For this reason, when their evidence contradicted that of the complainant in this report, I preferred their evidence.”
While writing credibility assessments is daunting. We hope our language suggestions will be helpful to you as you think through who to believe and what happened, and as you communicate your findings in your reports.
About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.