Investigating Claims of Harassment: A Step-by-Step “How To” Part 4: Note-Taking Techniques and Tips for Assessing Witness Credibility
February 13, 2018
Authored by: Mimi Moore
In any investigation of a harassment complaint, the investigator must interview people and take notes. This fourth part of a six-part series addresses techniques for note-taking and tips for assessing the credibility of witnesses. As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.
Helpful Witness Interview Note-Taking Techniques
Make sure that your notes are legible and that they are clear on who said and did what and which part of the story is according to whom.
Start a new page for each interview.
At the top of the page, state the names of those present at an interview, the date, time and place of the interview. Sign (or initial) and date the notes.
Although it is not necessary to write in complete sentences, the notes should be free from misspellings or grammatical errors so that the interviewer is not discredited in the course of litigation.
Take detailed notes, as close to verbatim as possible, during each interview. If necessary, ask the interviewee to speak more slowly, so that your notes will be as thorough and accurate as possible. Notes should provide enough information to understand, when reviewed later, what was asked and what information was provided.
Report matters asked of the interviewee as well as words spoken and facts provided by the interviewee. Document any refusal to share information.
Do not include your interpretations, beliefs, assumptions, conclusions, etc., about the facts stated. Rather than guess at reasons or intentions, ask the interviewee the reason the interviewee feels that way and the facts that support that feeling.
In most investigations, the investigator will need to resolve conflicts in information by making determinations about the credibility of witnesses. See the section below, on assessing credibility. If you note things during an interview that impact a credibility determination, record these observations on a separate document.
At the conclusion of an interview, review with the witness the points contained in your notes to confirm their accuracy and determine whether the interviewee has anything to add. You may decide, in some cases, to have the interviewee sign and date your notes.
Review and finalize the notes immediately upon completion of the interview or other communication. Your finalized notes should make sense to someone unfamiliar with the issues. Be sure that required disclosures such as confidentiality and non-retaliation have been documented.
If you are considering whether to tape record interviews, you should consult with the Company’s attorney. (You should never tape record an interview unless all parties present consent to the tape-recording.)
Tips For Assessing Credibility
In most every investigation, you must make credibility determinations.
- Inherent plausibility: Is the information believable on its face? Does it make sense?
- Demeanor: Did the person seem to be telling the truth or lying?
- Motive to falsify: Did the person have a reason to lie?
- Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
- Past record: Did the accused have a history of similar behavior in the past? Does the complainant have a history of making false accusations?
No single element is conclusive in making these determinations.
During or shortly after your interviews, make notes of the facts that will help you to assess a person’s credibility. Record observations, not conclusions about observations.
- What was the interviewee’s demeanor/body language? Factors to consider may include trembling or other signs of nervousness, obvious discomfort or unease, sweating, uneasy tone of voice, blushing or other facial expressions, lack of eye contact, etc.
- How did he or she react to the allegations (e.g., argumentative, defensive, hostile)?
- Does this person inspire confidence in the listener – i.e., does he or she make an overall credible impression?
- You need a baseline for comparison. How does the interviewee’s demeanor compare to the way he/she “normally” acts?
- Did the person’s chronology of events differ greatly from the chronology of any other interviewees?
- Does the person’s version make sense? Is it plausible or far-fetched?
- Did the person give you a plausible explanation of why an issue may have been raised?
- Was the person forthcoming or did you have to “pull” information from him or her?
- Was the person evasive?
- Does the person’s statement contain internal contradictions?
- Did the interviewee make any admissions during the interview?
- Did the person specifically deny anything?
- Are there supporting eyewitnesses? Were they credible?
- Was the person’s version of the facts different from anyone else’s version?
- Did the person’s statements conflict with any written information collected?
- Are there any diaries, calendars, other writings or photos that help substantiate the person’s story?
- Are there things that the person has said or done in other situations that make it more likely than not that the fact(s) in dispute actually happened?
The next post in this series addresses other sources of evidence, summarizing the investigation, and reaching a conclusion.
Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their policies and procedures for handling harassment complaints. If you or your organization would like more information on best practices for investigating complaints of harassment or any other employment issue, please contact an attorney in the Labor and Employment practice group.