1.6 Understand requirements for investigation types (i.e. administrative, criminal, civil, regulatory, industry standards)
We talked about different types of laws in the last chapter. Now we are going to start with the burden of proof because the burden of proof tells us how much effort we need to put in to prove our case.
The smallest amount of evidence is called a scintilla. If you file a lawsuit and you have no evidence whatsoever, then the Defendant may make a motion for summary judgement. In other words, the Defendant is asking the court to dismiss your case because there is no evidence, instead of wasting his time with a trial. If there is even a scintilla of evidence to support your claim, then the court must instead hold a trial.
The air of reality is a concept in Canadian law. When a Defendant in a criminal case wants to present a defence to the jury, there must be an air of reality. For example, if the Defendant is charged with murder and wants to claim in his defence that his actions were accidental or in self defence, he will be allowed to do so if there is an air of reality to that defence. The air of reality is “whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit”.
Reasonable suspicion is a standard that allows the police to perform a traffic stop or to frisk you for weapons. It is not a high enough standard to obtain a search warrant or perform an arrest.
Terry v. Ohio, 392 U.S. 1 (1968) was a Supreme Court ruling that said the police could stop you and frisk you if they suspected that you were armed and involved in a crime. A police officer was allowed to stop you if he had reasonable suspicion, based on “specific and articulable facts”.
Probable cause is a standard that allows a law enforcement officer to make an arrest, obtain a search warrant, or file criminal charges. The definition of probable cause is “reasonable ground for supposing that a charge is well-founded”.
Illinois v. Gates, 462 U.S. 213 (1983) was a Supreme Court ruling that said the police could obtain a warrant based on the “totality of the circumstances”. A bunch of facts, each on their own might look innocent, but taken together might be considered grounds for a warrant.
Preponderance of the evidence means that the allegation is more likely to be true than not true. This is the standard of proof in a civil case.
Clear and convincing evidence is a higher standard of evidence. It is used in some family law cases. It means that the evidence is highly probable.
Beyond a reasonable doubt is the standard used in a criminal case. It does not mean 100% proof, but it “falls much closer to absolute certainty than to proof on a balance of probabilities”. Courts are generally not allowed to define the standard with a percentage or explain it much. If you asked 100 jurors what they thought reasonable doubt meant, you would receive 100 different answers.
Beyond a shadow of a doubt means that the person is 100% certain that something is true. This is not a legal standard because it is usually impossible to prove something with 100% certainty.
There are four types of investigations
An administrative investigation is one that is completed internally. Typically, an organization conducts an administrative investigation when an employee violates a corporate policy. The organization can use whatever standard of evidence it wants. It can collect evidence from wherever it wants. But it should be careful
- An employee might file a wrongful termination lawsuit if they were treated unfairly in the investigation.
- A poor-quality investigation could affect the company’s reputation.
- We might need to preserve the evidence for a future civil or criminal investigation, where the burden of proof is much higher.
That means that we should have clearly defined policies for
- What types of behaviors are permitted and what types of behaviors are not permitted
- How the investigation will be conducted (through a standard operating procedure)
- How evidence will be collected and stored
- What rights employees have with respect to privacy on devices that are company-owned
- Who will participate in the investigation
-A criminal investigation is one that is conducted by the government for an alleged violation of its laws. The investigation starts with a suspected violation of the law. A law enforcement agency (or multiple agencies) then use the laws to gather evidence and build a case against an offender. The offender may be a person or a corporation.
When you suspect that a crime has taken place against your organization, you might conduct the investigation yourself or you might choose to contact law enforcement. The decision to contact law must be made by management. Why contact law enforcement?
- They have additional expertise and technology to investigate serious crimes
- They have the power to lay charges
- They have the ability to obtain search warrants and gather additional evidence from third parties and from foreign countries
- They may be able to warn other organizations about the crime so that they can protect themselves
A civil investigation is one that is conducted by civilians for use in a civil lawsuit. The standard of evidence is lower than in a criminal case. In a civil suit, both sides are obligated to collect and preserve evidence.
A regulatory investigation is one that is conducted by a regulatory body such as the FTC or EPA. The regulatory investigation has the same standard of evidence as a civil suit.
A regulatory body may bring a civil suit to enforce the action or may have its own internal board which could hold a hearing. You usually have the right to appeal the decision of an internal board.
The regulatory body may refer the matter for criminal investigation. For example, the Securities and Exchange Commission will conduct an investigation into insider trading. They may enforce the law by fining the person, filing a civil suit, or referring the matter to the FBI for a criminal investigation. Evidence that you provide during the civil investigation can be used against you in the criminal investigation.