The Fundamentals of Interviewing
3.3 Evidence Collection and Management
3.3.2 Evidence Collection and Preservation
Trap: Many fact finders’ self-imposed rules of evidence are exceedingly strict. Thus, excluded is evidence that otherwise would be admissible in the typical workplace investigation. Lowering the standard of proof eases the rules of evidence and per-mits the use of evidence otherwise not possible.
3.3.2.3 Admissibility and Materiality
In many regards, the admissibility, and often the materiality, of evidence are tied directly to the standard of proof. For example, in unemployment insurance benefit eli-gibility hearings, sometimes called UI hearings, nearly all forms of evidence are admis-sible. Administrative law judges hearing these cases will usually allow the introduction of any and all evidence. And, in my experience, even evidence of questionable origin (i.e. fabricated). Procedure requires such evidence to be weighted (not weighed) and accorded the consideration it deserves. All this makes for rather loose proceedings.
However, that is the intent. Because representation is optional in these venues, the rules are relaxed in order to ensure fairness to those who do not have representation. Most arbitration hearings are similar. It is usually the arbitrator that establishes the “rules of evidence” and determines what is admissible and what is not. As such, the outcomes of arbitrations are highly unpredictable. The following is a fine example.
Sometime ago, one of my undercover drug investigations resulted in the ter-mination of over 30 employees. All but one of the employees was a member of a collective bargaining agreement and entitled to grieve their discipline. The griev-ances ultimately resulted in arbitration. The arbitrator, well known for the liberal application of his authority, allowed the admission of all forms of evidence and claims. Although all of the grievants had provided written admissions during the investigation detailing their transgressions, he allowed them to recant or alter them substantially during the hearing. He allowed the argument that the admissions that were obtained without a union representative present were coerced. He ignored the fact that many of the admissions were corroborative to one another and that several of the grievants admitted that, even had a union representative been present, their statements to our investigative interviewers would not have been substantially dif-ferent. He also allowed the union to raise the issue of discrimination. Although a full two thirds of the workforce were minorities, less than a third of the grievants were. To cap it off, he allowed several of the grievants to introduce statements writ-ten by them asserting their own innocence, which they had penned after the fact.
The final travesty of justice was served when the arbitrator rendered his decision and ordered of all of the grievants be returned to work.
The rules of civil and criminal procedure do not allow for such injustices. Both in civil and criminal court, the rules of evidence are codified and, for the most part, adhered to. Uniquely, workplace investigations are subject to the rules of evidence
imposed by the employer. Short of legal challenge, the employee enjoys the preroga-tive of deciding both the standard of proof and the rules of evidence in deciding workplace issues. The challenge is to balance the need for fairness and maintaining workplace order. The employer’s decisions regarding discipline must be lawful, fair, impartial, and consistent.
3.3.2.4 Spoliation of Evidence
Spoliation is the intentional or negligent destruction of evidence and constitutes an obstruction of justice. Spoliation is also the destruction, or significant and meaningful alteration, of a document or instrument.7 The rules of evidence impose an obligation to retain and produce evidence deemed admissible and relevant in criminal and civil matters. The intentional and sometimes even the unintentional destruction of evidence may be unlawful and/or civilly actionable—and for good reason. The destruction of evidence very often provides one party an advantage at the expense of another. Recent cases involving the employees, and, in some instances, the agents (outside accountants and auditors) of public companies inten-tionally destroying documents and critical records demonstrate the consequences.
Litigation and criminal indictments of both the organization and the responsible parties are not uncommon. Worst yet, maybe, is the damage to the organization’s reputation and the loss of public confidence in the markets. The destruction these acts can cause can be incalculable. Even the destruction of evidence during a simple workplace investigation can have grave consequences.
During the fact finding process, should items such as emails, notes, and appar-ently extraneous documents be discarded, claims of spoliation may later arise. In emotionally charged cases, such as those involving the claim of discrimination or sexual harassment, accusations about the destruction of evidence are common.
Furthermore, they are difficult to disprove. The mere fact the alleged document (which may have never existed) cannot be produced inferentially suggests that it was destroyed. In most cases, only testimony can be used to prove the document didn’t exist (think of one’s personal notes and how one would prove they or por-tions of them didn’t exist). If the credibility of the witnesses used to prove the document didn’t exist is in question, the charge of spoliation has a good chance of gaining traction. If so, the credibility of these witnesses will suffer further damage.
Tip: In the course of your fact finding and investigative interviews, do not destroy anything that may later be considered evidence. The destruction of evidence is considered an obstruction of justice and may be a crime and/or civilly actionable.
At the very least, it looks bad.
3.3.2.5 Evidence Retention
For many of the reasons stated earlier in this chapter, evidence retention and pres-ervation has become a popular topic. The mishandling and misplacing of evidence can be catastrophic. The fact finding process must contemplate this issue from the onset. Reconstruction of evidence is time consuming and expensive. It is best to handle it properly from the onset. The favored tool in workplace investigations to catalog and preserve evidence is the evidence file.
An evidence file may be nothing more than a manila folder in which eviden-tiary documents are placed for safekeeping. Accordion folders, corrugated boxes, file cabinets, or safes also may be used to store evidence. On the extreme end of the spectrum is the evidence locker or compound. Regardless of its form or construc-tion, the purpose is the safe storage of evidence.
In addition to containing evidence, the evidence folder should contain a doc-ument used to identify and track the evidence within it. Variations of this form are largely a matter of preference. Figure 3.5 represents a typical evidence track-ing form.
Trap: Even the routine and scheduled destruction of documents pursuant to an established document management program is not foolproof. Administrators should routinely conduct inspections to ensure compliance.
3.3.2.6 Chain of Custody
The transfer of evidence from one party to another should be carefully documented.
Each person who handles or takes control of evidence must be recorded, creating what is called the chain of custody. The chain of custody, sometimes called the chain of evidence, is a document that, at a minimum, identifies each custodian, when they received it, and to whom they transferred it. The chain of custody must not be broken. That is, there cannot be gaps during which the evidence was unaccounted for or out of the control of a custodian of record. A chain of custody that is broken exposes it to challenge and jeopardizes the admissibility of the evidence. Figure 3.6 is a sample evidence custody form.
The sloppy handling of evidence exposes both the fact finder and the evidence to credibility challenges. Claims of evidence tampering, alteration, or contamina-tion are possible when evidence is mishandled. Fact finders should not handle or use originals during their investigation. Whenever possible, copies, photographs, or models should be used in lieu of the actual evidence. Never place an original piece of evidence in the hands of the subject. Knowing the value of the evidence and its implications, the subject may be tempted to not return it or to destroy it.
Tip: Establish a chain of custody for each piece of evidence. Do not take originals into the field. Use copies, photos, and models instead of the actual evidence.