Published on: August 24, 2022
Before the COVID-19 pandemic, most workplace investigators would have agreed that the best way to conduct interviews was in person. It was believed that sitting down face-to-face with complainants, respondents and witnesses offered many benefits, including making them feel heard and – perhaps most importantly – allowing the investigator to observe their demeanour for the purpose of making credibility assessments.
When almost all work moved from the office to virtual in 2020, workplace investigators had to grapple with the fact that they would need to adapt to conducting interviews remotely or risk having investigations put on hold indefinitely. Most workplace investigators will attest that, after a period of adjustment, the move did not significantly impact how investigations are done. One area with which many investigators have struggled is wondering if their credibility assessments are as solid as before since they cannot sit down with the interviewees. Reassuringly, the science and emerging case law support that conducting credibility assessments over video conferencing platforms works fine in most cases.
Below are some points to consider about credibility assessments.
1) You may not need to make a credibility assessment at all
While credibility can be a valuable tool in reaching factual findings, it should be relied upon only after other evidence has been considered. If an investigator has multiple witnesses and several contemporaneous documents, the relative credibility of the parties may not be something they need to grapple with. If you have better, more concrete evidence on which to base your findings, stop and think about whether a credibility assessment is necessary.
2) If you make a credibility assessment, you may not need to refer to the demeanour of the parties
There is debate amongst decision-makers as to whether demeanour should be relied upon when making credibility assessments. Some court decisions have moved away from heavy reliance on a witness’s behaviour as a tool for assessing credibility.1 In contrast, other decisions have reaffirmed its importance in determining the worth of a person’s testimony.2 Some recent scientific studies have shown that humans are notoriously bad at making accurate links between demeanour and truthfulness,3 and cultural differences, trauma, and language barriers can complicate matters even further. Accordingly, if there is a more solid basis for a credibility assessment, then referring to demeanour in an investigation report may not be necessary.
3) So, what should you look for in assessing credibility?
In terms of what constitutes a “better” foundation for a credibility assessment, investigators can consider a variety of factors, including both the internal and external consistency of the interviewee’s statements, how directly questions were answered, and how generally plausible the interviewee’s story is. Unlike demeanour, these credibility markers are more directly tied to the evidence gathered and less likely to be influenced by improper assumptions or investigator bias.
1 See for example R. v. Rhayal 2015 ONCA 377 (O.C.A.) 2 See for example R. v. N.S. 2012 SCC 72 (CanLII) 3 For example, see Snook, B., McCardle, M., Fahmy, W. & House, J.C. Assessing truthfulness on the witness stand: Eradicating deeply rooted pseudoscientific beliefs about credibility assessment by triers of fact [22 C.C.L.R]
If you would like to learn more about crafting clear and defensible credibility assessments, consider attending our upcoming online training session on Assessing Credibility.