05 Jun

An Investigator’s Guide to the Whistle-Blower: Part 6 of 6


At this point, the investigator has put in many hours, had countless conversations, and has earned at least some level of trust with the whistle-blower.  Sufficient details about the incident have been extracted from the whistle-blower so that the investigator could find corroborating evidence to support the allegations made if such evidence existed.    At this point, it becomes necessary for the investigator to assess if an organizational, civil, and/or criminal action can and should be pursued.  Depending on goals, policies, procedures, and laws, the investigator may have to consult with executives, managers, peers, and/or attorneys to the merits of any action.

Even if a decision is made not to pursue an action, the relationship between the investigator and the whistle-blower should continue.  If an investigator were to suddenly end the relationship with the whistle-blower because there is no action to pursue, the damage to the whistle-blower’s psyche will be severe.  Trust for a whistle-blower who has endured significant hardships was not easy to give.  If the investigator has gotten to a point where the whistle-blower has confided important details to the investigator, it symbolizes a deeper level of trust in the investigator.  An investigator who ends the relationship with the whistle-blower after determining no action would be pursued would violate the implicit and/or explicit promise that went into effect when the whistle-blower chose to provide information the investigator sought.  This action would most likely send the whistle-blower back into a familiar tailspin with even greater damage than what came from the initial disclosure.  Investigators have a duty of care to the whistle-blower and failure to honor that duty will result in the investigator losing credibility with both internal and external stakeholders.

As an example of such a duty, an investigator gained the trust of a whistle-blower in 1995.  To this day, the investigator and whistle-blower still maintain contact.  For the last twenty-one years, the investigator has received a telephone call from the whistle-blower on the anniversary of the date where the whistle-blower’s name was publicly surfaced.  In that telephone call every year, the whistle-blower recounts the details of that day as vividly as if they had happened the day before.  To this whistle-blower, complete closure will never come but speaking with the investigator became a way to cope with the ramifications and tribulations endured.  Although the investigator has no scientific proof, he often wonders if the whistle-blower could continue to function in society without this annual telephone call.

On the other hand, if some kind of action such as a deposition, hearing, or arbitration will occur, the investigator’s job is nowhere near finished.  The whistle-blower will have to be prepped to testify in addition to being introduced to other members of the investigative team.  Both of these events will cause intense stress and pressure to the whistle-blower.  In some ways, it will remind the whistle-blower of the disclosure and bring back the negative memories and feelings associated with the action.  “They are almost always on edge and the slightest of cues sends them hurtling back inside their protective shells.”[1]  If an investigator is prepared, the damage can potentially be mitigated and also be used as a means to start the process of re-establishing the whistle-blower’s confidence and self-esteem while interacting with other individuals.

During preparatory efforts, there will be an infinite number of cues that could send the whistle-blower into a tailspin.  The age during which the whistle-blowing trauma was experienced could provide a clue to the investigator as to how damaging these episodes could be. “The few studies that have looked at this issue do suggest that there are differences in the effects of trauma on neurobiology, depending on the stage of development at which the trauma occurs.”[2]  The younger the whistle-blower was at the time of disclosure, the more effect the disclosure has on the brain.

With preparatory efforts, a whistle-blower succumbing to an emotional hijacking is inevitable.  An investigator who is able to help the whistle-blower manage their emotions can induce more effective cooperation and/or testimony. Albert Bernstein, a clinical psychologist, suggests the question, “Please speak more slowly.  I’d like to help.”  Bernstein believes that the phrase indicates empathy on the investigator’s part and gets the whistle-blower to think instead of being overtaken by the emotional response.[3]  Speaking about the whistle-blowing event sparks intense emotions in the whistle-blower.  Allowing the whistle-blower to speak openly about their emotions can assist in the coping process, which was frequently abandoned after the incident because of the physical and emotional pain suffered after disclosure.  This will help the whistle-blower transition from one state of mind to another.

In the whistle-blowing process, it is not uncommon for the whistle-blower to see himself/herself as the victim.  The victim mindset eats away at a person’s confidence.  This self-image results in many lost opportunities, a reluctance to express themselves, and feelings of helplessness when it comes to changing things around them.[4]  Without confidence, a whistle-blower may not be the type of witness that a jury would find believable and/or credible. A whistle-blower’s credibility could hinge on the jury’s perception of their motivation.  If the whistle-blower lacks confidence in testimony, the jury may not be inclined to believe said testimony.  Numerous scientific studies have shown a direct relation between confidence and success.[5]

Confidence can be derived from self-esteem, something that many whistle-blowers have lost.  Self-esteem is different than self-confidence.  “It (self-esteem) is the matrix through which we think, feel, and act and reflects and determines our relation to ourselves, to others, and to the world.”[6]  When relaying the facts behind their disclosure, a whistle-blower is relating to others in an attempt to influence an outcome.  It is likely that the whistle-blower’s testimony will be an important segment of any kind of action brought.  If the whistle-blower is able to relate their experience and generate empathy, it could be the difference between winning and losing your action.

A female whistle-blower disclosed how a company was creating fictitious mortgages to bilk investors out of their funds.  In her initial disclosure, the whistle-blower disclosed how she had participated in the scheme by forging other people’s names on documents when instructed by executives at her company.  After her disclosure, the whistle-blower lost her job, her house, and even went to jail for her actions.  While all this was happening to her, the executives remained free awaiting a criminal trial.  The investigator and the prosecutor met with the whistle-blower in preparation for trial.  Her lack of confidence and self-esteem was palpable.  She was concerned about being in the same room again with the executives who led her down this path.  As the investigator counseled her, he tried to build up her confidence by stressing how she had been the only person who had the temerity to come forward.  She did this at great personal expense.  To build confidence and self-esteem, the investigator was trying to bring the whistle-blower back to a positive time in her life where she exhibited courage and strength.

When the prosecutor joined the conversation, he initially complimented the whistle-blower and thanked her for providing information.  He reminded the whistle-blower that her contribution to the case was immeasurable.  While he was building her confidence, he also took measures to make sure that the whistle-blower understood that the entire case did not rest on her shoulders.  The prosecutor carefully outlined the evidence they had and explained that the whistle-blower’s testimony was needed to fill in a few gaps. The prosecutor’s outline of what was required blended perfectly with the expectations set by the investigator in his multiple conversations with the whistle-blower.  When the interview ended, the investigator summarized the job of the whistle-blower at trial by stating that she had the easiest job of all.  “All you have to do is tell the truth.”

When the trial started, the whistle-blower was one of the first witnesses for the prosecution.  The whistle-blower was clearly very nervous as she stuttered and stammered recounting the facts that led to her disclosure.  After the first hour of testimony, her body language changed.  She started to sit more upright and her voice began to lose the nervous little tics that were originally present.  By the end of direct questioning, her answers were confident and forceful.

The defense attorneys in the case were wily veterans who knew their way around the courtroom.  Based on what their clients told them, the defense attorneys expected the whistle-blower to be meek.  The whistle-blower, having gotten more confidence in the exchange with the prosecutor, was nothing of the sort.  The whistle-blower managed to direct her anger in a positive manner by answering every question confidently.  She freely admitted to all of her failings that led her to jail.  She recounted how executives lured her into the scheme by promising that the problem would be fixed in the following month.  With each word uttered, her self-esteem and confidence grew as she focused on the executives sitting in the room.  She continued her testimony by recalling how the very same executives who promised to fix the problem told her they were willing to tip the FBI to the document forgery knowing that the FBI would find her handwriting on the document.  She spoke about her feelings of helplessness as they continually fed her more documents to forge.  Although attorney’s tried to steer the testimony in their favor, the whistle-blower turned out to be quite adept at parrying their efforts.  She closed out her testimony by reminding jurors that the defendants got all the benefits while she had taken all the risks.

Once off the stand, the investigator and the whistle-blower spoke outside of the courtroom.  She apologized for becoming too emotional, but the investigator told her not to worry.  The catharsis was an important part of her healing.  When she heard of the guilty verdict, she broke down and cried.

Today, the whistle-blower is out of jail and back with her family. They were forced to relocate from the area where the offense took place and she has found another job in a different business.  In some ways, she realized she was lucky enough to have a family who stood by her.  She has since spoken with other whistle-blowers who had similar experiences and this has helped her remain strong.  Although she paid a significant price, the whistle-blower swore that she would have made the disclosure all over again.

Investigators will eventually find whistle-blowers who can provide crucial information on all kinds of improprieties.  To achieve success, the investigator must be flexible, patient, emotionally intelligent, and be able to adapt to the changing needs of the whistle-blower. Maybe the most important thing an investigator can do for a whistle-blower is to help them find some form of closure.  By listening to the whistle-blower, acting in a trustworthy manner, and potentially bringing the disclosed information to a public airing, an investigator could help the whistle-blower cope with the traumatic events that occurred in the past.  Although they will probably never fully gain closure, the relationship between an investigator and a whistle-blower is important.  If done correctly, the whistle-blower may even have the chance to feel human again.

[1] Wlassoff, V. (2015).  How Does Post-Traumatic Stress Disorder Change The Brain, Neuroscience and Neurology, January 24, 2015.  Taken from the Internet on August 7, 2016 at http://brainblogger.com/2015/01/24/how-does-post-traumatic-stress-disorder-change-the-brain/

[2] Bremner, J. (2006).  Traumatic Stress: Effects on the Brain, Dialogues in Clinical Neuroscience, Dec. 8(4), pp. 445-461.  Taken from the Internet on August 7, 2016 at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3181836/

[3] Stillman, J. (2015).  3 Magic Phrases For Handling Overly Emotional People, Inc., January 27, 2015.  Taken from the Internet on August 7, 2016 at http://www.inc.com/jessica-stillman/3-magic-phrases-for-handling-over-emotional-people.html

[4] Burton, N. (2012).  Building Confidence and Self-Esteem, Psychology Today, May 30, 2012.  Taken from the Internet on August 12, 2016 at https://www.psychologytoday.com/blog/hide-and-seek/201205/building-confidence-and-self-esteem

[5] Kay, K., & Shipman, C. (2014).  The Confidence Gap, The Atlantic Magazine, May 2014.  Taken from the Internet on August 12, 2016 at http://www.theatlantic.com/magazine/archive/2014/05/the-confidence-gap/359815/

[6] Burton, N. (2015).  Self-Confidence Versus Self-Esteem, Psychology Today, October 19, 2015.  Taken from the Internet on August 12, 2016 at https://www.psychologytoday.com/blog/hide-and-seek/201510/self-confidence-versus-self-esteem


Image source: By U.S. SEC Office of the Whistleblower [Public domain], via Wikimedia Commons

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