Focus on the Evidence, Not Your Theory
Avoiding confirmation bias in investigations
Unlike good attorneys who are expected to be strong advocates for
their clients, a good investigator is not and cannot be an advocate for any one person, entity, or opinion. A good investigator, even an investigator working for or with an attorney, cannot afford to be an advocate. A good investigator needs to be an objective gatherer of facts. Those objective facts may ultimately lead to a conclusion but should not be interpreted or filtered by pre-conceived notions or bias. The mere appearance your investigation lacks objectivity taints your findings.
When discussing bias, we typically think of bias based upon race, gender, religion, etc. However, bias can hold many forms that can impact the impartiality required by all investigators when conducting what should be an objective gathering of facts. Merriam-Webster Dictionary states that bias can be defined simply as an inclination to hold a particular perspective based upon “a personal and sometimes unreasoned judgment”. This runs counter to the expectation for an investigator performing what should be an impartial investigation.
Biases can be conscious or unconscious. Conscious biases, because we are aware of them, should be easier to keep in check during an investigation. Unconscious biases, sometimes called implicit biases, are more difficult because we may not be aware of them. These hidden biases can influence an investigator’s actions and decision-making when interpreting evidence and choosing what leads to follow. One type of unconscious bias is known as confirmation bias; the tendency to selectively search for and consider evidence that confirms the investigator’s beliefs. Simply put, the investigator forms an opinion of what occurred then conveniently finds the evidence that supports that belief.
Let the evidence be your guide, not your theory
See what you think of this real-life scenario:
Police respond to a report of an armed robbery. The victim gives a description of a vehicle the robber was driving. The vehicle described happened to match a vehicle belonging to an individual known by the investigating officer and this individual has prior convictions for similar type robberies. The person known by the investigator is found driving in the vicinity a short time later, pulled over, and the driver detained. Based upon the robbery victim’s identification of the driver as the robber, the driver is arrested and charged. The arresting officer states in his report that the victim identified the suspect as the robber. Good, quick, investigation and this should be an open and shut case. Right?
Not so much. When the audio from the investigating officer’s body cam is reviewed, things change a little:
Investigator: How can you be certain that that’s the guy?
Witness: I’m not sure but I’m pretty sure it’s him because he’s got that mean look. And the way he stands kinda like him. And he’s got that guilty face so that’s him.
How strong does the identification seem now? By the way, I am intentionally leaving out other evidence gathered as a result of the identification for simplicity’s sake because evidence gathered as a result of a questionable identification is better off debated in court, not here. For our purposes here, let’s just say that the now shaky identification led to whole range of other evidentiary issues.
Now, don’t get me wrong. This isn’t to say the investigating officer did anything wrong, unethical or illegal. In fact, the investigator may have even identified and arrested the right guy. The problem comes in when the facts gathered appear to be based upon a preconceived theory and then interpreted to confirm that theory. That appearance casts a shadow on what very well could be very strong evidence of guilt and is the first step toward reasonable doubt in a jury’s mind.
Avoiding unconscious bias takes conscious effort
There is one very important skill an investigator needs to combat unconscious biases like confirmation bias – mental discipline. One technique to exercise that mental discipline is to continually question your own evidence. This is done by asking yourself questions in a particular way. For example, you are an investigator hired by a local business who suspects one of their bookkeepers, Stick E. Fingers, is embezzling by writing checks to fictitious vendors. Ask yourself, “What is the purpose of my investigation?” Is your answer, “the purpose of my investigation is to determine if Mr. Fingers is embezzling”? The battle against bias starts here. If your answer is yes, you may be well on your way to an unconsciously biased investigation. The answer should be, “the purpose of my investigation is to determine who is embezzling”. Start here, then your follow-on questions and evidence collection change. “Does Fingers have free access to blank checks?” changes to “Who has free access to blank checks?”. “Has Fingers created fictitious vendor accounts?” becomes, “Who created all vendor accounts and have those accounts all been verified?”
How embarrassing for you as an investigator to go forward and prove Fingers was embezzling but, because you failed to look at the evidence objectively, the other bookkeeper who was doing the same thing goes undetected.
Ask yourself the hard questions now before someone else does
At some point, in one manner or another, your investigation’s process and findings will be scrutinized. And that scrutiny may come from a defense attorney who hired her own skilled investigator to review your work. Put yourself in the shoes of our well-meaning investigator investigating an armed robbery. You are the one now on the witness stand. Defense council asks, “did you look at the possibility of any other potential suspects?” and you hesitantly answer “no” because you know what’s coming next. And then council asks, “so you identified my client early on as the offender and went about gathering evidence against him without considering the eye-witness identification may not have been reliable?”
Are you wishing you had asked yourself that same question the night all this started?
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