On March 6, the Wall Street Journal reported compliance officers and lawyers charged with conducting internal investigations and bribery risk assessments would face increased challenges as the novel coronavirus spread.
A week later, more and more companies are encouraging (if not requiring) employees to work from home. Intervening in the virus’ spread by shuttering the windows is a vehicle for “flattening the curve,” or slowing the rate of growth.
For obvious reasons, internal investigations are traditionally done in person. Interacting face-to-face feels like the truest gauge of an individual’s credibility. COVID-19’s spread, however, has led companies and law firms to either postpone meetings and interviews with witnesses or use telephone calls and videoconferencing to work around the problem.
There are undeniable downsides to this result. Michael W. Johnson, former U.S. Department of Justice attorney and CEO of Clear Law Institute, admits: “One of the biggest advantages of face-to-face interviews is the ability to establish rapport with a witness,” making them feel comfortable enough to speak freely.
Nevertheless, there are also upsides to technological workarounds.
People tend to think if they have the opportunity to read a witness’ body language, they will be better able to detect lies. That’s not always the case. “While there are some non-verbal cues [to lying], most people don’t know what those are, and sometimes they are the opposite of what they think,” argues Johnson.
According to one study cited in Johnson’s “Science of Workplace Investigations” seminar, the average person does better at spotting lies by hearing the interviewee rather than hearing and seeing them. When they can only hear the witness, investigators have to focus on listening to the nuances of what the person says, which is a much better way to spot deception than looking for supposed body language cues to deception. Also, seeing a witness can trigger unconscious bias related to how truthful the person is based on that individual’s race, gender, or physical attractiveness.
Removing the visual stimuli of a witness’ appearance and mannerisms forces the investigator to focus on linguistic “tells”: illogical inconsistencies in the person’s story; equivocations or qualifications; indirect responses; and discrepancies with other witness testimonies.
Investigators can listen for other subtle verbal cues, as well. If a witness pauses before answering a question, or his or her rate of speech slows in the middle of the story, these might be cues to deception (assuming they are deviations from that individual’s baseline behavior).
In addition, when asked to give a narrative about what occurred, truth tellers on average provide a lot more detail than liars, who tend to provide short, carefully crafted responses. These are observations easily made from afar as long as your ears are open to them.
Johnson’s next “Science of Workplace Investigations” seminar is scheduled to take place June 18 in Washington, D.C. For more information, visit clearlawinstitute.com.
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