Expert: Robin Sexton - 9/16/2009

Question
QUESTION: My friend was allegedly caught on CCTV to have stolen a cellphone left on the couch. He admitted to holding the phone when he found it and stated that he put it back on the couch. He still sat there and momentarily left. It was never shown in the CCTV that he put the cellphone in his pocket, just as it was written on his Notice to Explain letter. The company's defense is that there was this "black thing" that was there before he sat and when he left it was gone (CCTV is not as clear, so they can't identify it to be the cellphone). This is a major offense, terminable if proven guilty. In addition, he stated on his reply that he didn't report the missing phone because he doesn't want the hassle in the procedure and he just wants to maximize his 15min break. Do you think that the video capture is enough to accuse him of stealing the phone? If not, can there be a case against him for not reporting the incident? He wants to clear his name of these accusations and we would really like to hear your take on this. Thank you in advance.

ANSWER: Mira,

From your question i could not discern if we are talking about a criminal charge or an administrative issue within a company.  The difference is important because of the standard of proof required.  Administratively could be as low as 50.1 percent while criminal is up in the 90's.   Here is the issue and it is the same with all evidence.  The person(s) who is making the final decision on the evidence needs to decide what is the "weight" of the evidence to the issue.  No one piece of evidence is 100%  decisions are normally based on a comparison of several different pieces of evidence.  Circumstance, statements, actions, and common sense also play into it.  No the video is not 100% conclusive but the question is that compared with other items does it rise to the level to support a decision?  As to reporting an incident, i am sorry i do not quite understand.  Criminally there are few things that require mandatory reporting, accidents and abuse of children are a couple.  It is rare for any law that requires reporting of a theft.  There may be some sort of administrative requirement to report to a supervisor but that would need to analyzed within that context.  If your friend is looking at job termination over this i would suggest representation either via union or private counsel.

Sorry i cant be more specific

Good luck

robin

---------- FOLLOW-UP ----------

QUESTION: Hi Robin,

I'm sorry if I wasn't specific myself. Maybe I just don't know the right questions to ask. Now that you asked, I believe that this is an administrative issue. Please allow me to elaborate on the scenario. To start it all off, an employee from the same company reported a lost cellphone on July 31, 2009. The security department went over their CCTV and found my friend next to sit on the same couch where the the phone was left. On August 18, 2009, he was served a Notice to Explain letter and was asked to reply within 24hrs in which he complied with. A couple of days after he was served with Show-Cause Notice and on the letter it was stated that he is allegedly caught in CCTV of stealing a phone and putting it in his pocket. He was also directed to reply with an explanation why sanctions should not be put on him. Plainly putting it, he replied that he should not be punished because he did not do it. More over he requested to watch the video for better recollection since the incident happened more than two weeks back after he was served his NTE. In the video, he held the phone very briefly and placed it back on the couch. It was never seen that he put the phone, or anything for that matter, in his pocket. They keep on focusing on the "black thing" that was still there while he was sitting and was gone when he left. (I mean that black thing can just be shadow casts) I've done just a little research myself and found out that cases like this should only be convicted if beyond reasonable doubt. That is why I thought of asking, should this be enough evidence to find him guilty of stealing the cell phone?

My friend is still working at the same company while the investigation is on-going, praying that soon they will find him innocent once and for all. He is also informed that he can bring a representative or legal counsel if he wishes too during their hearings. The problem is there was one hearing already held on the spot and he was not able to bring a representation. They don't really call it hearing though, they say it's just a preliminary investigation. Can they really do that?

I believe my friend and probably the real reason why I am writing you is because I want to also know how we can defend his case to prove him innocent.

I hope that I was able to give you ample details on the case. Will be waiting for your next reply. Thank you very much.


ANSWER: Mira,

Asking the right question is always half the battle and in the legal world can be very confusing.  I have a better idea now of what is going on.  This matter appears to be a civil matter or administrative within the company.  So different rules.  You mention "Beyond a reasonable doubt", that level of proof is reserved for criminal charges only, where police and prosecutors get involved.  The level for administrative is normally "Preponderance of the evidence" which basically means more likely then not.  Another way to look at it is 50.1 percent.  Another misstatement in your question is finding him innocent.  The question is to find him guilty.
The steps in an internal corporate investigation are quite different then a criminal investigation.  The biggest difference is that the employee is required under threat of termination to cooperate and to provide "truthful" information.  His best course is to contact an attorney familiar with employment law to represent him.
video images can sometimes be enhanced to provide better clarity to what is actually going on.  An attorney can advise the best course of action in this situation.

Good luck, please repost if you have additional questions

robin

---------- FOLLOW-UP ----------

QUESTION: Thank you for the reply Robin and thank you for your suggestion, we will definitely look for an attorney to help him with the case. I just want to confirm that I understand what "preponderance of the evidence" is. Based from your explanation and from my readings also, the decision will be based on the weight of the evidence. What will happen is that the plaintiff will have to prove his claim (of stealing) is true and the defendant, on the other hand, will have to prove his claim as true with more supporting evidence to give more weight to it.

Again, thank you for the help.

Mira

Answer
Mira,

Yeah pretty close.  Think of it this way.  If you have two people that are involved in something.  Person A says yes he did and Person B says no he didn't.  It is a draw, no case. However if there is any evidence, statement or other admissible evidence to point one way or the other, that is preponderance, more the 50 %.
Remember this is not really court, this is a admin hearing done by people that may or may not be completely impartial or knowledgeable.  So with the above scenario you are a coin flip away from a very bad decision.

Good luck

robin