In almost every investigation class, we hear the classic question: what do you do with a “he said, she said”? The reason for this is that most learners have had experience with these challenging cases. Remote work has increased the prevalence of evidence such as this. Teams have become smaller and employees are working more independently which creates an increased opportunity for things to go wrong in private. But no behaviour happens in a vacuum. There are always other sources of evidence to be gathered and considered. This includes things like:
- Each party’s evidence of what happened that day leading up to the incident, and what happened afterwards.
- Each party’s account of what did happen. Even if one of them denies that anything happened at all, they may still be able to describe what interactions did take place.
- Each party’s evidence about who they talked to around the time of the incident, and what they said.
- Second hand accounts of what the party said about the alleged incident, including personal text messages.
- Each party’s account about what has happened since, and whether there has been any change in their behaviour, further trigger for reporting, or other challenges.
This evidence helps the investigator piece together a complete picture of the event, but it must be treated with great care. Many traditional tools for analysing evidence are no longer sufficient to provide psychosocially safe investigations, and our legal obligations demand an evolution towards trauma-informed practices.
Consider these traditional approaches to analysing evidence:
Consistency and completeness: some investigators might point to inconsistencies in a party’s account, to suggest that their memory is not a reliable source of information. This could include occasions where their contemporaneous and interview accounts do not match, or where new details are provided over time. This approach is not trauma-informed. A party who has been impacted by the incident under investigation may be experiencing stress or trauma, which can prevent memory from functioning in a linear way. Inconsistency does not tell us anything about the quality of a person’s memory: instead, where inconsistency arises, we simply cannot draw a conclusion on that specific issue. It is an absence of evidence, not a compromised source of evidence.
Demeanour: many investigators will treat a party’s account as more credible where that party had open body language, provided lots of detail, or spoke with confidence. This may be a natural instinct, but it is not trauma-informed. A party who has been impacted by stress or trauma may have every reason to hesitate in a process where their trust in authority or the organisation could be compromised. Similarly, unique body language may be a coping mechanism, related to a disability, neurodiversity or cultural difference, or simply the impact of trauma arising from the subject’s conduct.
Inherent likelihood and plausibility: many investigators look at the whole story told by a party and consider whether it seems logical, possible or likely. This approach is deeply flawed. People will always find new and unusual ways to hurt each other, and these behaviours can be highly unpredictable rather than likely. Investigators may also consider whether a party’s claimed reasons for behaviour are “logical”, forgetting that stress and trauma can impact reasoning processes to result in unexpected behaviour which may not make sense to another person.
Although a trauma-informed investigation makes analysing evidence that much harder, we are not left without analytical tools. Techniques like corroboration and reading down remain available, and they work best when supported by trauma-informed practice in every area of your workplace. For guidance and training to suit your organisation’s needs, visit www.wiseworkplacetraining.com.au or call us on 1300 580 685.