‘Hearsay’ in Investigations? It’s ‘Inadmissable,’ Right? Wrong!

Anyone who’s watched a courtroom drama knows that hearsay evidence is inadmissible, so you can’t consider it when doing your harassment investigations, right? Wrong, says expert attorney Allison West, SPHR. There are three reasons investigators should not rule out hearsay statements or evidence.

West, a respected and popular speaker on HR topics, is principal of Employment Practices Specialists in Pacifica, California. She serves on the Board of the Association of Workplace Investigators (www.aowi.org). Here’s what she recommends about hearsay in HR investigations:

You are investigating a complaint of harassment. You meet with witness Wally and he tells you the following:

Karen told me her boss Bill gave her a neck rub and gives her daily           compliments about her clothing while giving her “elevator eyes.  I think Susan may know more about what happened.”

Many investigators would dutifully write down what Wally said and then likely disregard or discount the evidence, labeling it “hearsay.” Is this the right decision?

What Is Hearsay?

Hearsay can be a verbal or written statement, or something nonverbal, such as gestures or pictures.  Legally, “hearsay” means: “an out-of-court statement offered to prove the truth of the matter asserted.”  The premise behind the definition is that evidence presented in court must be reliable and subject to cross-examination.  Therefore, hearsay evidence cannot be used in court unless it falls under one of the many exceptions (under federal law there are nearly 30 exceptions).  Trial attorneys spend a good deal of time arguing about the hearsay nature of various evidence to advocate for and defend their clients.

But What About for Investigators? 

As for the “lay” definition of “hearsay,” according to the Merriam-Webster’s Dictionary, hearsay is “something heard from another person: something that you have been told.”  The prolonged myth is that any hearsay statement or evidence is inherently unreliable because someone did not learn the information first-hand.

However, each day we are first-hand witnesses to a variety of actions or words, and yet, our memories consistently fail us when we are asked to recount a situation, conversation, etc.  Think of when you walked into your office this morning, acknowledged the receptionist, and then headed to the kitchen for your morning coffee.  What color was the receptionist’s shirt? Eyes? Pants?  You were certainly a first-hand witness.  However, you may not remember those details because you were not focused on the receptionist or, even more significant, those details were not important at the time.  First-hand witnesses are simply witnesses who were present—no guarantees exist that the information they provide is necessarily more or less credible than that from someone who heard something second-hand.

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The Three Reasons

Here are three reasons investigators should not rule out hearsay statements or evidence.

First, hearsay evidence is not always unreliable.

Our jobs as investigators is to ask questions, probe, then probe some more.  We are charged with putting the pieces of a puzzle together so we can, hopefully, see the picture of what happened regarding the complainant’s allegations and his or her version of the facts.  Or, if no complaint was made, to figure out each witness’s version of the facts and reach a conclusion as to whether misconduct occurred, a policy was violated, or whether whatever is the subject of the investigation happened.

In the example above, if the investigator determines Wally is a credible witness, they can surmise something may have happened to Karen by her boss Bill despite the fact that Wally did not witness anything first-hand.  For example, even if someone was in the room when Karen’s boss Bill gave her the neck rub, this does not mean they saw Karen’s reaction or heard any comments made by Bill.  On the other hand, if Wally is a good friend of Karen, he might notice the cadence of her speech when she relayed her story, or picked up on more details and nuances because of their friendship, provide insights into her credibility, and his concern and possibly his anger at what his friend had experienced.

Whether Wally is correct or accurate regarding the facts during the interview is immaterial; he has provided information for the investigator to continue on the investigation journey to figure out what happened.  At this point in the investigation, excluding Wally’s testimony because of hearsay would be premature.

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In tomorrow’s Advisor, two more of West’s reasons why hearsay may be helpful in HR investigations.