There are many different kinds of investigations, such as workplace criminal, regulatory, civil and so on. As diverse as they may seem, investigations have many commonalities. They all have some form of an appeal process designed to either challenge the facts or how the investigation was conducted. Any appeal, oversight review or inquest focuses on fairness, lawfulness and the process of the investigation. How an investigation is conducted may be be a far cry from what a court or inquiry views as proper investigative protocol. An improperly conducted investigation can be extremely risky, expensive and damaging to your bottom line and your organization’s reputation.
A properly conducted investigation can keep you out of court
Criticism of any investigation will challenge either its results or its quality
Conducting an investigation to a standard that withstands scrutiny requires a structured approach, careful planning, appropriate resources and skilled investigators. Criticism of any investigation will challenge either its results or its quality. If the finding cannot be challenged, there may be an attempt to discredit the investigation in its entirety. The importance of doing an investigation well, with a focus on thoroughness and objectivity makes any disputes before an adjudicator, a court, the media or public difficult.
Keeping an investigation away from an inquiry or courtroom can be as simple as doing it properly. We have spend years conducting successful investigations, most of which never end up in a courtroom. Though thoroughly reviewed, the investigative process was defendable and therefore irreproachable.
Here are some principles to keep in mind before you start any investigation.
Investigators must be independent
Investigators have to be impartial and be seen to be impartial. A predetermined outcome of the findings will compromise the integrity of an investigation and will not withstand scrutiny if anyone involved demonstrates a bias towards one party or another. An investigator should maintain a professional relationship with everyone associated with an investigation and nothing more. A good investigator maintains a position of neutrality and objectiveness, neither being too friendly, nor judging the subject of the investigation until all the evidence is gathered.
Investigators must be trained and experienced
Conducting a proper investigation is not for amateurs and can be very risky. An investigator should have experience conducting and documenting investigations and judicial challenges. The level of experience depends on the seriousness of the issue or event under investigation. Large and more complex investigations require significantly more experience.
Investigate and pursue all relevant issues
As a safeguard against tunnel vision, the investigative mandate needs to be explicitly defined
Challenges to investigations sometimes focus on “tunnel vision”—a conscious or unconscious bias that prevents an investigator from considering relevant issues outside the focal area of his or her prejudice. As a safeguard against tunnel vision, the investigative mandate needs to be explicitly defined, including how the investigation will be framed and the critical path of objectives and activities. Once these checks and balances are in place, the investigation can move forward with a high degree of assurance that all relevant matters will be identified and investigated.
Investigations must be properly resourced
A simple investigation requires fewer resources than an investigation involving larger systemic allegations. Regardless of the size and breath of the investigation, investigators need appropriate time and resources to conduct a thorough process. Courts don’t care about lack of time or resources; they are there to ensure the application of law is applied. Investigators shouldn’t be overloaded with too much work as they need time to properly conduct, assess and document their findings. An investigation is risky business that not only has to withstand critical inquiry, but also must be conducted correctly and in a timely fashion.
Identification, collection, preservation and examination of evidence
How documents, email and other physical evidence are seized and handled is critical to any legal process
With big investigation come bigger problems. There are many examples of failed investigations caused by a lack of proper identification and incorrect processing of legal documentation. Conducting an investigation with multiple exhibits, interviews, and examinations of evidence may require a professional who has verifiable experience. How documents, email and other physical evidence are seized and handled is critical to any legal process. The continuity of exhibits has to be maintained and accounted for. The analysis of material gathered during the investigation must be objective and based solely on the facts. What the lay public perceives as “proper” is often far from stringent legal standards.
All relevant documentation must be secured, searchable and accessible
File management and properly organized disclosure of information in legal proceedings is a must. In the event that your investigation is large and contains significant amounts of material to disclose, seek professional help. I have witnessed many investigations struggle through disclosure requirements, only to get lost in their own file. Relying completely on a software program to organize your material can provide a false sense of security. Information must be properly entered for a relational database to work. Documenting, organizing and accessing information are critical components of competent, reliable investigation and legal processes.
Witnesses need to be identified and segregated
A trained investigator will examine the relevant issues and documentation in advance of the interview
Preparation is the key to conducting a proper interview. More preparation should occur for a witness that is deemed important to the investigation. A trained investigator will examine the relevant issues and documentation in advance of the interview; learn everything they can about the person or people they will interview; understand the culture, structure, and underlying politics of an organization; gauge the emotional/psychological state of the interview subject; and, consider how the investigation will be interpreted.
Most of our cases never went to court but were reviewed in detail, determining process, procedure and law
Seasoned investigators prepare their investigations with the mindset that the process will be examined pursuant to some legal process or inquiry. Ninety percent of a trial is about the process of the investigation and not the evidence.
The oversight provided to my investigative teams has always focused on allowing levels of investigative creativity within the bounds of the law and the spirit of the law. Most of our cases never went to court but were reviewed in detail, determining process, procedure and law.