The Fundamentals of Interviewing
3.3 Evidence Collection and Management
3.3.3 Reporting and Communicating Results
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.
practical matter, the fact finder should report to someone not actively involved in the investigation.
This, of course, is easier said than done. In small organizations, it is nearly impossible. Even in large organizations there may not be the bandwidth to sup-port the hierarchy of separate powers and responsibilities. Similarly, very complex or sensitive investigations involving organizational members at the corporate, or C level, may preclude distinctive roles of the participants. In these instances, other safeguards to ensure fairness and impartiality are necessary. One of them is the use of an outside counsel.
Lawyers are expensive and the decision to hire one should be made very care-fully. Few organizations engage them without having a very special need or desire.
However, in the case of workplace investigations, outside counsel can bring so much to the process that their use should be considered every time an investigation
EVIDENCE CUSTODY FORM COLLECTION INFORMATION
DATE: __________________________________________________________________
TIME: __________________________________________________________________
LOCATION: ____________________________________________________________
SUBJECT’S NAME: ______________________________________________________
DESCRIPTION OF EVIDENCE: ____________________________________________
_______________________________________________________________________
_______________________________________________________________________
NAMES OF PERSONS HANDLING EVIDENCE
1. _____________________________Time/Date: _____________________________
2. _____________________________Time/Date: _____________________________
3. _____________________________Time/Date: _____________________________
4. _____________________________Time/Date: _____________________________
5. _____________________________Time/Date: _____________________________
6. _____________________________Time/Date: _____________________________
7. _____________________________Time/Date: _____________________________
Figure 3.6 Evidence custody form.
of any substance is contemplated. The properly selected attorney will have the legal knowledge and experience that insiders do not. Competent outside counsel will have resources and time to oversee a complex investigation, and more than likely have handled similar situations and challenges in the past. Outside counsel should be able to provide the counsel and advice needed to make the best decisions when they are needed. Outside counsel also will be viewed as more impartial. Although by definition, outside counsel is an advocate, he or she is still an outsider. They should not be carrying the same baggage as an individual internal to the organiza-tion. Nor should they have had the past experiences and interactions with the sub-ject, witnesses, or others involved in the investigation. Usually they lack the history that might cloud their judgment and impartiality. Furthermore, outside counsel can be the voice of reason. When temperatures rise and emotions begin to surface, the properly selected attorney can be the voice of reason and the corporate therapist that quiets the waters. He or she also can assuage egos, expose hidden agendas, and mediate differences.
Inside counsel can often do these things as well. But, in many instances, inside counsel lacks some of the specific expertise necessary to do the job properly.
Additionally, most staff attorneys are not litigators. They haven’t the training or the experience (or the time) to prosecute or defend an action. In other instances, house counsel is already a witness. Their participation began at the onset, before the matter came under investigation. They coached human resources, wrote letters to opposing parties or interviewed participants and witnesses. They are conflicted.
They are still able to advise and participate, but, because of their vested interest in the organization, they are subject to the charge of impartiality and self-interest.
Outside counsel offers something else—the ability to protect the investigative work product and result from discovery. If litigation is underway or litigation is anticipated, and the investigation is performed under the direction and supervi-sion of counsel, the work product produced by the fact finders can be protected from discovery and the requirement to be produced. Under the doctrine of the work product privilege, all that the fact finder does and produces can be deemed privileged and withheld during discovery. Furthermore, all of the communications between the employer and the attorney are privileged as well. Like the attorney work product privilege, the doctrine of attorney–client privilege protects attorney–
client communications from discovery. And for good reason. In order to preserve the integrity of our legal system, it is held that the attorney’s effectiveness is sig-nificantly impacted by his ability to communicate confidentially with his client.
Under the privilege, even the client’s admission of guilt is protected. In the case of workplace investigations, all aspects of the matter can be protected. Damaging statements, memos, and other communications created during the investigation can be withheld once the privilege is invoked. Unfortunately, this powerful protec-tive tool is often overlooked and underutilized.
Like many good things, the privilege has its limitations. It is only a tool. It is not a shield. One cannot hide behind it in order to deceive or cover up criminal
activity. One cannot use evidence that he holds privileged in the prosecution or defense of his case and not disclose it to the other side. In workplace investiga-tions this can create an unexpected dilemma. If, for example, an employer that possesses information provided by a confidential informant and wishes to use it to discipline an employee, cannot claim that the information is privileged. In order to use the information, it has to disclose it if challenged. The operative term here is if challenged. Absent a challenge, the employer is likely to be able to consider and use any evidence it wishes, regardless of its source. The easiest work-around to the confidential informant dilemma is not to use the informant’s information directly.
Instead, use the information provided by the informant to further the investigation from another direction. That is, the informant’s information is only used as intel-ligence. With it, the project manager can engineer another investigative solution, then produce the results of that effort as the primary evidence for the purpose of deciding discipline.
The reader should not confuse outside counsel’s role with that of a decision maker. Outside counsel, like the fact finder plays a functional role that does not include making decisions regarding discipline. If at all possible, the decision maker should have no other role than deciding discipline. Segregating the role of the par-ticipants reduces the likelihood of claims of impartiality and unfairness. Because the standard of proof of good faith/reasonable conclusion is so low, appearances of impartiality or unfairness can jeopardize the credibility of the entire process.
For the purpose of clarity, it should be mentioned that the attorney work prod-uct and attorney–client privilege can be invoked by either outside or inside counsel.
The attorney need not be external to the organization.