Incident Investigations: Not a Trial by Jury

“When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.”  — Norm Crosby

During the 15 years I have lived in the city of Saint Louis, I’ve been called for jury duty four times. The most recent was just a few weeks ago. It was good reminder of how little a jury trial in a criminal case has in common with a safety incident investigation. As important as jury trials are to our judicial system and our form of government, I remain convinced that a safety incident investigation does more good and is more likely to make the world a better place.

Here’s why.

The Adversarial System

A jury listens to two stories, one from the prosecutor and one from defense, and then decides which it believes. The jury does not pursue the truth, or even facts. It weighs evidence that is curated by the two sides. The judgment of a jury is passive, which is required by the law. During jury selection and then during the trial, potential members of the jury and the jury itself are repeatedly admonished NOT to seek facts on their own. Jury members are not allowed to go to the “scene of the crime” to draw their own conclusions, or to ask questions of witnesses, or even to ask questions of the attorneys. The intention of the law is not to ensure that juries are well informed, but to ensure that the juries are working only with the information provided by the attorneys.

In most cases, the attorney that is a better storyteller “wins”; the prosecutor wins by seeing a defendant punished, while the defense attorney wins by having their client avoid punishment. The prosecutor only brings a case if they believe that they can win—get the defendant punished—while the defense attorney only defends their client when a prosecutor has decided to bring a case.

In an incident investigation, the investigation team may start out with an idea of what happened, but its goal is to collect enough information to construct the best story of what happened. More importantly, the investigation team wants to understand why the incident happened. The incident investigation team only “wins” when they understand the incident well enough to make recommendations that will be implemented, and when implemented, will prevent a reoccurrence of the incident.

Inadmissible Evidence

In the courtroom, there are several types of evidence that are inadmissible. For instance, any privileged information, such as communications between a doctor and their patient, a clergy member and their penitent, or between an attorney and their client, is not admissible in a court of law. In regard to communication, the courts also hold that “hearsay” is not admissible—so that a witness can only present evidence that they personally experienced. Likewise, a judge may prohibit the introduction of evidence that they deem “irrelevant,” which is often difficult to determine in the absence of the entirety of the evidence.

Most importantly, any evidence gathered in breach of constitutional rights is inadmissible. That means that evidence collected during an illegal search is inadmissible.

Given that the point of a trial is to decide whether or not to punish a defendant, it is a valuable feature of our legal system that prosecutors are not allowed to violate certain expectations of confidentiality or the constitution in their zeal to punish whoever they have decided is guilty.

In an incident investigation, on the other hand, there is no one to be punished. The objective is to understand the incident and to understand how to prevent it from happening again. Any evidence that contributes to this understanding is “admissible”. Whether the evidence that leads to good conclusions and recommendations would be admissible in a court of law is immaterial. Any evidence that leads to a safer future is fair for the incident investigation team to use.

Beyond a Reasonable Doubt

Finally, there is the question of drawing conclusions. In a courtroom, for each charge against the defendant, the jury is invited to make a single determination: “guilty” or “not guilty.” Many charges require that the prosecutor prove several elements to show that the defendant broke the law and committed a crime worthy of punishment. Did the defendant do “A” and “B” and “C” and “D”? The jury must decide, beyond a reasonable doubt, that the defendant actually did “A” and “B” and “C” and “D” before they can find the defendant guilty. The jury can be convinced that the defendant did “A” and “B” and “C”, but not too sure about “D”, in which case they must find the defendant “not guilty”. A jury can believe that it is more likely than not that the defendant is guilty, but “more likely than not” does not satisfy the burden of “beyond a reasonable doubt.”

In an incident investigation, there is no requirement that conclusions be beyond a reasonable doubt. It is enough that a conclusion is likely to be correct, as long as it leads to recommendations that will prevent a reoccurrence of the incident.

Different Purposes

The legal profession wants us all to believe that the purpose of the criminal justice system is the quest for truth. Not so. The purpose of the criminal justice system is to decide whether a crime has been committed and then to decide if the defendant accused by the prosecutor is the one who is guilty of committing that crime.

Because depriving a defendant of their life or liberty is a very weighty decision, a decision that does little, if anything, to redress the crime or to prevent a similar crime from being committed in the future, it is important that the legal system has set up many barriers to avoid coming to that decision lightly. In the eighteenth century, English jurist Sir William Blackstone famously said, “It is better that ten guilty persons escape than that one innocent suffer.”

The recommendations from an incident investigation, on the other hand, should solely serve the purpose of preventing a reoccurrence. When they do that, they are good recommendations. Any incident investigation that concludes by saying, “We don’t know beyond a reasonable doubt what happened or why, so we recommend doing nothing,” is a failed incident investigation.

When a Safety Professional Serves on a Jury

I’ve never believed that safety professionals had much to learn from the judicial system. As Sydney Dekker put it in his book, Just Culture, “The chances that a legal system will tease out a meaningful and just account of what happened are actually remote. It is not its charter and even if it were, it is not particularly good at it.” (p.108)

What I have also come to realize is that judicial system has little to learn from the safety profession. We have different purposes and different goals, and confusing them is an injustice to all.