If you've ever watched a legal drama, you're probably familiar with the expression "beyond a reasonable doubt". But that's not the only standard of proof. As an investigator, you may be required to meet varying standards of proof depending on the allegations. The three most recognizable standards are "the preponderance of the evidence", "clear and convincing evidence" and "beyond a reasonable doubt".

In this guide, we'll explain which of these standards you should use for your company internal investigations and which to add to your workplace investigation policy. You'll also learn how case management software can help streamline your investigations and make reaching your standard of proof easier.

Download Understanding Evidence Types to make sure you've collected all 15 types of evidence commonly found in workplace investigations.

The Preponderance of Evidence

The preponderance of the evidence is the lowest burden of proof. It's typically used in civil proceedings and workplace investigations and means that the allegations are more probable than not. To be precise, you need to be able to prove that the allegations are 51 percent true (or 51 percent of the allegations are true).

RELATED: How to Conduct an Employee Misconduct Investigation: A 12-Step Guide

A typical case might involve a plaintiff suing a defendant for causing a car accident. In this case, you must show that the defendant is more than 50 per cent likely to have caused the accident.

In an internal investigation process, this standard of proof could go something like this: Greta claims that Henry made an inappropriate comment about her dress. Henry denies the allegation, but their coworker Brenda claims she heard the comment directed at Greta as well. Henry has also been investigated for making sexual comments to his coworkers in the past. While you don't have concrete proof that Henry made the comment, two people claim he did, so it's more likely than not that the allegation is true.

Clear and Convincing

To meet the clear and convincing evidence standard, your evidence must show that it’s highly probable the allegations occurred.

Legal Match states that the clear and convincing standard would be appropriate in claims involved fraud, wills and inheritances, and in cases involving important family decisions such as withdrawing life support from a relative.

In an employee relations investigation, you might want to use this standard of proof if the allegation is very sensitive or would lead to a serious punishment (e.g., termination). For instance, say that your internal harassment policy states that after an employee is found to have violated the policy three separate times, they will be terminated. If Greta's allegation against Henry would be Henry's third harassment policy violation, you might want to dig deeper and find more evidence that he really made the comment before terminating him. This protects him from a potential false accusation, and reduces your organization's risk of a wrongful termination lawsuit from Henry.

Beyond a Reasonable Doubt

Beyond a reasonable doubt is the highest standard of proof. The evidence must prove that there is no logical conclusion other than the allegations are true. If there's any uncertainty, the accused cannot be convicted. This standard is used in criminal investigations, as the consequences of being found guilty of a crime can be extremely serious, so there should be no doubt that the accusations are proven.

The most famous example of failing to prove beyond a reasonable doubt is the O.J. Simpson case. In the criminal trial of the case, says Legal Match, the prosecution had enough evidence to prove the preponderance of the evidence standard, but the defense brought forth enough evidence (i.e. the ill-fitting glove) to raise reasonable doubts with the jurors.

The Standard of Proof in a Criminal Investigation

Criminal investigations most often use the “beyond a reasonable doubt” standard. To meet this standard, there must be enough evidence that you are 90 per cent certain the allegations are true. This burden is a little too high for the typical workplace investigation.

According to Compliance Cosmos, the varying standards are one reason why the right to remain silent and the right to a lawyer don’t apply to employees in workplace investigations. It’s also why an employee could be legally acquitted for their actions but still face employment-related discipline.

The Standard of Proof in a Workplace Investigation

The applicable standard of proof in most workplace investigations is the preponderance of the evidence. This standard requires that the investigator be at least 51 percent sure that the allegations are true. This protects employee rights during investigations while also ensuring other employees and your company are safe as well.

Your job as an investigator is to gather proof. In the HR investigation process, the question you’re trying to answer is whether there is enough evidence available to substantiate the allegations. You’re trying to come to a factual conclusion and, following that, an appropriate workplace investigation outcome.

RELATED: 15 Types of Evidence and How to Use Them in an Investigation

In a workplace misconduct investigation, to meet the preponderance of the evidence, you must review documents, collect evidence, and conduct interviews, then measure what you’ve found against this standard of proof. Determine whether it’s more likely than not that the alleged conduct occurred. Then, if you find that the evidence meets the standard, suggest disciplinary actions based on your company policies.

What Does This Mean for a Workplace Investigator?

Meric Bloch, Principal at Winter Investigations, says that “you get paid whether it’s substantiated or not”. “Your real value comes when you can say: Here’s what happened. Here’s why it happened. Here’s how it happened", he says.

Hear more from Meric Bloch in his webinar: Understanding Evidence Rules and Legal Elements.

Avoid trying to reach legal conclusions. That's a job for somebody else, if the allegations warrant it. If you apply criminal justice standards to your workplace investigations, you would end up spending more time, effort, and resources than is necessary. It would also result in substantiated misconduct going unpunished when you're unable to meet that 90 percent threshold but could have satisfied the 51 percent standard that did apply.

In short, workplace investigators should gather as much evidence as they can to ensure that their investigations are fair and consistent. However, because you are not accusing someone of a crime, simply the violation of a company policy, all you need to do is prove that the allegation is more likely to have occurred than not.