Writing investigative reports is never anyone’s favorite part of investigative work.  After the dynamic processes of interviewing, document review, analysis of evidence and overall analysis of credibility and clarity, writing a report can feel like drudgery.  There are many ways to approach the writing of a report, but minimally an investigative report must contain:

• A description of the reason the fact-finding was undertaken.

• A description of the methodology used, especially any circumstances or decisions that were not “standard” practice.

• A detailed description of the claims or allegations.

• Relevant witness statements.

• A detailed description of the events as described by respondents, as well as responses to specific allegations.

• A summary of relevant evidence, with copies of pertinent evidence attached as exhibits.

• A credibility assessment.

• Findings of Fact.

It is the final two items that I want to address in this post.  With increasing frequency, I am being told by in house HR investigators and Title IX investigators that they are not conducting credibility analyses nor laying out facts, but simply concluding in their written reports whether their policies have been violated.  I caution against this.  The process of investigation is based on finding facts that can then be applied to standards.  The clarity of those facts may hinge tremendously on whether or not informants are credible.  Given that internal investigations rely on a “preponderance” standard, even small increments of credibility are important.  Failing to specifically assess credibility leaves an enormous gap in the fact finder’s reasoning, and leaves the reader to guess at the investigator’s reason for drawing conclusions.  Similarly, failing to articulate facts is akin to an investigator saying, “trust me.” Needless to say, if the reader is attempting to discredit the investigation, such a gap is a worthy target for attack.

So, what goes into a credibility assessment?  We need look no further that the EEOC guidance to tell us that a credibility assessment should include:

Plausibility. Is the witness’s version of the facts believable? Does it make sense?
Demeanor. Does the witness seem to be telling the truth? Be very careful with this one. Nonverbal behavior should only be used to suggest the witness “seems” to be lying or truthful if the investigator has conducted a solid baseline evaluation of the witness when they were being truthful.
Motive. Does the person have a reason to lie?
Corroboration. Are there documents or other witnesses that support the witness’s version of events?
Past record. Does the alleged wrongdoer have a past record of inappropriate conduct?

The simple reality is that you cannot simply say “I believed them,” and expect that to carry a set of facts. If you can’t parse out that gut feeling, it is fairly certain that someone scrutinizing your findings will perceive bias. Similarly, simply saying, “it is he said, she said” and failing to parse out credibility appears to demonstrate a lack of rigor. In either case, the credibility assessment must be clear-eyed, carefully worded and flow directly into findings of fact, which should be structured as follows:

• Those things that happened at a high level of certainty

• Those things that were more likely to have happened than not (preponderance standard)

• Those things that are not supported by a preponderance of evidence

• Those things that were actually ruled out or could not have happened.

This is the end of the investigator’s responsibility.  You have laid out clear facts, and it is now up to the decision-makers to apply those facts to standards.  Do the facts represent violations of policy or law?  If you are the investigator, you may have opinions about this, but be careful of drawing legal conclusions if you are not able or qualified to do so.

Finally, be very cautious about making recommendations in an investigative report. Once you begin making recommendations, you are vulnerable to a suggestion that since you conducted the investigation with the organization’s solutions in mind you were not neutral.  Of course you can be asked about whether certain solutions might work, or whether you perceived that a party might be amenable to certain solutions; nevertheless, originating those solutions and putting them in the body of a fact-finding report creates an unnecessary spot of weakness in what should be a methodologically unimpeachable report.