The panel is tasked with making findings of fact and it is crucial that the panel concludes its investigation and its report with clear findings or a conclusion that the evidence did not permit the panel to make findings of fact. These conclusions must be based on the evidence the panel has found in the course of its investigation: the documents, the statements etc. The investigation report must explain how the panel came to its findings. There are essentially three findings that the panel will need to make in relation to each of the incidents/events under investigation:
In some cases, the findings of fact will depend on the credibility of the witnesses. Determining the credibility of a witness’s testimony must be based on objective criteria. Here are some factors a panel may use to assess credibility:
The panel should assess witnesses’ evidence, using the factors above. Ultimately, the panel will make an assessment as to their credibility and therefore which account is credible. Corroborative statements made by a complainant to others after an incident can be relevant.
When assessing the evidence, it is important for the panel to distinguish between direct and circumstantial evidence. All this evidence is relevant, but not all evidence has the same weight.
Hearsay evidence may be corroborative and is evidence of what a witness heard others say: Sergio told Donough that he saw Sane at a restaurant last Wednesday with a colleague. Donough has no direct evidence of what Sane was doing last Wednesday; he can only give hearsay evidence of what Sergio told him. Hearsay evidence may be considered by a panel in the context of investigations of possible misconduct, but will have limited probative value on its own. However, it may open new lines of inquiry; in the example, the panel may want to interview Sergio to obtain Sergio’s direct evidence.
Drawing adverse inferences
Adverse inferences may be drawn from a failure to cooperate or an evasive response to questions.
Standard of proof
Whether the evidence is sufficient to meet the requisite standard of proof at the end of a disciplinary process is ultimately a decision of the Under-Secretary-General for Management Strategy, Policy and Compliance. In cases where separation or dismissal is a possible outcome, the evidence must be clear and convincing, that is, the truth of the facts is highly probable. For any other disciplinary measure, the preponderance of the evidence is required (more likely than not that the facts and circumstances underlying the misconduct exist or have occurred).
Panels should not reference the burden of proof in making its findings, and the assessment of sufficiency is for those who must take action on the basis of the panel’s investigation. Instead, the panel must ensure that it explains the evidence that it relies upon in making its findings of fact.
Reaching conclusions and disagreement among panel members
The panel must submit a report as the final product of the investigation. The report is based on the evidence gathered during the investigation. Disagreement amongst panel members can occur and can even persist until the end of the investigation. If the panel cannot eliminate disagreement through discussions, the disagreement should be reflected in the findings and conclusions. The disagreement may also be documented in more detail in a separate note-to-file.
Drafting the report
The report is an official UN document and may become part of a subsequent internal process. It should, therefore, be:
The exact structure of the report is for each panel to determine but every report should ensure:
More tips on drafting reports are in the templates section, as well as a checklist and a template report: see Templates 5.01 - Report Writing Checklist, 5.02 - Report Writing Guide and 5.03 - Prohibited Conduct: Panel Report Template.
The report should neither raise unanswered questions nor leave matters open to interpretation.
A suggested structure would be to:
Once the report is completed
The investigation report and case file should be submitted to the responsible official. It is possible that, due to the complexity of the case, or for reasons beyond the panel’s expectations, the investigation is delayed. The panel must make sure to keep a record of the reasons that delay the investigation.
The panel members should remain available to explain the investigation procedure and findings of fact, provide clarifications and additional fact-finding where necessary, and possibly provide testimony in any legal process that may follow.
The panel should not communicate the outcome of the investigation, or the investigation findings, to the alleged offender or affected individual. The appropriate communication will take place at a later stage depending on what action is taken on the basis of the evidence contained in the investigation report.