If you’ve ever watched a legal drama, you’re probably familiar with the expression “beyond a reasonable doubt”. But that’s not the only standard of proof.
As an investigator, you may be required to meet varying standards of proof depending on the allegations. The three most recognizable standards are “the preponderance of the evidence”, “clear and convincing evidence” and “beyond a reasonable doubt”.
Download Understanding Evidence Types to make sure you’ve collected all 15 types of evidence commonly found in workplace investigations.
The Preponderance of Evidence
The preponderance of the evidence is the lowest burden of proof. It’s typically used in civil proceedings and workplace investigations and means that the allegations are more probable than not.
A typical case might involve a plaintiff suing a defendant for causing a car accident. In this case, you must show that the defendant is more than 50 per cent likely to have caused the accident.
Clear and Convincing
To meet the clear and convincing evidence standard, your evidence must show that it’s highly probable the allegations occurred.
Legal Match states that the clear and convincing standard would be appropriate in claims involved fraud, wills and inheritances, and in cases involving important family decisions such as withdrawing life support from a relative.
Beyond a Reasonable Doubt
Beyond a reasonable doubt is the highest standard of proof. The evidence must prove that there is no logical conclusion other than the allegations are true. If there’s any uncertainty, the accused cannot be convicted.
The most famous example of failing to prove beyond a reasonable doubt is the O.J. Simpson case. In the criminal trial of the case, says Legal Match, the prosecution had enough evidence to prove the preponderance of the evidence standard, but the defense brought forth enough evidence (i.e. the ill-fitting glove) to raise reasonable doubts with the jurors.
The Standard of Proof in a Criminal Investigation
Criminal investigations most often use the “beyond a reasonable doubt” standard. To meet this standard, there must be enough evidence that you are 90 per cent certain the allegations are true. This burden is a little too high for the typical workplace investigation.
According to Compliance Cosmos, the varying standards are one reason why the right to remain silent and the right to a lawyer don’t apply to employees in workplace investigations. It’s also why an employee could be legally acquitted for their actions but still face employment-related discipline.
The Standard of Proof in a Workplace Investigation
The applicable standard of proof in most workplace investigations is the preponderance of the evidence. This standard requires that the investigator be at least 51 per cent sure that the allegations are true.
Your job as an investigator is to gather proof. The question you’re trying to answer is whether there is enough evidence available to substantiate the allegations. You’re trying to come to a factual conclusion.
To meet the preponderance of the evidence, you must review documents, collect evidence and conduct interviews, then measure what you’ve found against this standard of proof. Determine whether it’s more likely than not that the alleged conduct occurred.
What Does This Mean for a Workplace Investigator?
Meric Bloch, Vice President of Global Investigations at Booking Holdings, says that “you get paid whether it’s substantiated or not”. “Your real value comes when you can say: Here’s what happened. Here’s why it happened. Here’s how it happened”, he says.
Hear more from Meric Bloch in his webinar: Understanding Evidence Rules and Legal Elements.
Avoid trying to reach legal conclusions. That’s a job for somebody else, if the allegations warrant it. If you apply criminal justice standards to your workplace investigations, you would end up spending more time, effort and resources than is necessary.
It would also result in substantiated misconduct going unpunished when you’re unable to meet that 90 per cent threshold but could have satisfied the 51 per cent standard that did apply.