One of the unique facets of conducting independent investigations is that we really are the creators and drivers of each process. We are constantly making decisions about who to interview, in what order, and deciding which questions to ask. Although some policies or legislation provide a scripted investigations process, most of the time critical procedural decisions are left up to the Investigator.
For new and experienced investigators, making these important decisions with an eye to ensuring procedural fairness can feel both liberating and daunting.
Reply Evidence in Investigations
One of the most critical decisions that must be made is when to bring evidence back to the parties for reply. Presuming that the investigation process follows a Complainant/ Respondent/ witnesses order, bringing evidence back to the parties usually happens in one of two instances:
When evidence from the Respondent or the witnesses is markedly different than the evidence provided by the Complainant, or
When witnesses provide evidence that is markedly different than the evidence provided by the Respondent. In most situations, the Respondent will have seen the Complainant’s version of events in the statement of particulars or may have provided with a copy of the initial complaint.
The Rule in Browne v. Dunn
For those of us who can’t quite remember everything taught in our Evidence class in law school (ahem, most of us), Brown v. Dunne was an 1893 House of Lords case that provided procedural direction for ensuring fairness in the court process. The court’s direction, (“the rule,”) is that any party seeking to impeach the credibility of a witness must put the contradictory evidence to the witness in order to provide an opportunity for the witness to respond and explain the contradiction.
The application of the rule in Brown v. Dunne to investigations is clear: if you are to make a determination about credibility or make a finding that is contrary to what the party’s evidence was, you must bring this alternative evidence back to the party and allow them to explain the difference. Although the case law references “witnesses,” the application to investigations is more towards the parties.
Practicalities of the Rule in Browne v. Dunn in Investigations
Even experienced investigators struggle with when and how to bring this alternative evidence back to the parties. I call this part of the process the most difficult, as parties will be hearing, through the Investigator’s voice, what exactly the other participants’ evidence is. Some of the practical challenges for Investigators in applying the rule are:
It is challenging to determine which evidence needs to go back to the party. The reply interview should not be a full recitation of all of the evidence provided by the other side, and it may take some time to determine which evidence is contradictory and needs to be put to the party for reply. Putting too much unnecessary evidence back to the party may exacerbate the negative situation.
It is challenging to go back to a party with this alternate evidence that might be upsetting to them; in my own practice that often includes allegations of sexual violence, I struggle with how to do this in a trauma-informed way. While it is a necessary part of a fair investigation, delivering news to a Complainant that the Respondent has denied the events in question or has stated that they were consensual, is distressing and possibly damaging.
It is also challenging to explain to a client or a party that the investigation process will be further delayed to allow for this contrary evidence to be put to the other party. Everyone (parties, witnesses, clients, the Investigator) wants this process to be over and the outcomes determined.
Tips and Tricks of How to Take Evidence Back to a Party
In deciding which evidence needs to go back to the party, the Investigator must ask whether the party has a full understanding of what the alternate version is. The test that I use is: Would the party be surprised to know what the other side’s version is? If this is the case, then the evidence should be brought back for a reply. If I am uncertain if they would be surprised, or if I spend more than thirty seconds contemplating this, I err on the side of caution and bring the evidence back to them for a reply or explanation.
In planning my reply interview, I put great thought into how I will deliver this alternate evidence. I always create an interview plan and practice my presentation of the evidence. I try to remain as factual as possible without inflaming the words or putting an extra spin on the information. I acknowledge at the outset of the conversation how difficult it will be for the person to hear this other evidence. Sometimes I provide the quotes from the other person, if I feel that I won’t get the exact language right. I ask the party, “What is your response to [XX]s version of events?”
In explaining why this reply process may extend the submission of my report, I tell the client or the party that this is an essential part of a fair investigation process. Clients would rather receive the report two weeks later than have the investigation’s determinations (or subsequent penalties issued by the client) overturned by a judge or adjudicator, because this critical step of obtaining reply evidence was not completed.
Conclusion
As the masters of our own processes, investigators need to ensure fairness to all parties. This includes following the rule in Browne v. Dunn and ensuring that parties are given the opportunity to reply to contrary evidence, before the Investigator makes a finding or a credibility determination. Closing this loop and taking this essential step ensures that our findings will be upheld and the process is fair and transparent.
Jennifer White is a workplace and sports investigator in Ottawa, Canada.
