Empathy, Neutrality, and Bias in Investigations

“Keep a straight face.”

“You can’t show emotion.”

“Don’t acknowledge one person’s side.”

As an investigator, I’ve heard these things a lot over the years from folks who are really enthusiastic about “neutrality.” The general pitch is usually some version of the idea that, by acknowledging an individual’s perspective, you are giving it credibility and, therefore, creating a disadvantage for, or bias against, the “other side.”

Oh how I wish life were so simple, that there’s only one version of events, or one perspective that is “accurate,” and that “the other side” is, therefore, “wrong.” For those of us who have worked or lived among chaos—whether through a profession in conflict resolution, in a family with siblings or children, or in a profession where you are constantly navigating human interactions and conflict (top of my mind: shout out to the K-12 teachers out there!)—you likely will find that, in many cases, the axiom stands: The truth is somewhere in the middle.

This doesn’t mean that there isn’t a unifying set of facts that bind reality. This doesn’t mean that the truth cannot be found. This doesn’t mean that an investigation is worthless. This doesn’t mean that everyone is lying.

Rather, it’s just a fact of the universe that no two individuals will ever share the exact same perspective because they cannot occupy the same space. Not to veer too far into physics for this discussion about investigations, but it’s super important to keep this in mind as an investigator. Approaching every interaction with a party or witness from a place of neutrality, curiosity, and empathy is critical. And (this is where I agree with the sentiment behind the “keep a straight face” crowd) an investigator should never give into the temptation to assume that someone is right or wrong, or that one person’s perspective is the absolute truth. And it would certainly be ill-advised to telegraph that belief or disbelief to your interviewee.

HOWEVER (and here comes the digression), I absolutely do not believe this means an investigator needs to be devoid of any perceptible emotion or empathy.

Empathy, roughly speaking and given the lack of any true consensus definition(s) in psychology or sociology, is the ability to perceive, interpret, and react to an individual’s emotions and experience—that is, their cognitive and emotional states as informed by their perspective.

Now, there are some folks who would shy away from what I am about to say. Who would rather avoid this space for fear of messing up or straying too far from their baseline neutrality. And that’s okay! If it’s uncomfortable, you don’t need to follow me down this path. I mean, I hope you still read to the end, but there’s no pressure for you to actually do any of this in your practice…

As a baseline: It’s ok to acknowledge emotion during an interview. I think most of us are on the same page at this basic level. It would be super awkward if someone is very emotional and you don’t acknowledge it. And I don’t feel I’d rustle any feathers to say we should all at least take a moment to allow the interviewee to take a break, gather themselves, blow their nose, have a sip of water… Those are the basics we’ve probably all experienced and done.

Now, to take it a step further: In this moment of expression, the interviewee is communicating with the investigator. Perhaps not entirely consciously or deliberately, but it does present an opportunity for the investigator to gather more information. Asking that the interviewee share more about where that emotional response came from or what led to that emotion in that moment can elicit different trains of thought and uncover information that may otherwise not become available through the investigator’s (certainly well-crafted and meticulous) line of questioning and conversation. And this is where the flatline approach would fail.

It would not work for the emotionless, stoic-faced, less empathetic interview style to come back from an emotional moment just to ask the interviewee to explore their emotions. This is where acknowledging not only the individual’s emotion, but also their experience can help progress the conversation in a natural, neutral way. When the interviewee returns to the conversation, you can re-enter the interview with something like, “It’s clear this has been a very upsetting experience for you and I really appreciate you hanging in there with me as we go through these details—I know it can be really hard. Was there something in particular about what we were discussing or what you were thinking about that brought on that emotion?”

This acknowledges the interviewee’s experience without going too far, which is what, in my experience, keeps investigators from taking this path—they fear they will say something that sounds like (or could be manipulated later to mean), “I see your emotion, so I clearly believe everything you’re saying.”

But the entire point of an investigation is to gather information that provides context to a situation, and that information is—going back to our physics lesson from earlier—always going to be offered from different perspectives. One eyewitness can experience an event completely differently than another person who was also a percipient witness. Data and statistics can provide objective information and context, but probabilities aren’t going to explain whether a discriminatory motive led to a statistical anomaly.

The reality is that investigators are trying to find as much information as possible to inform their decision about what more likely than not happened (under a “preponderance of the evidence” standard) or what was highly probable (if using a “clear and convincing” standard).

So, let’s not be afraid to acknowledge the reality of “perspective” as we conduct our investigations.

It won’t make you a biased investigator.

In fact, quite the opposite: It will allow you to approach each interview and each piece of evidence with fresh eyes. With less bias. With more curiosity. And that will make you a better investigator.

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