USA Trends and Developments Contributed by: Christina Hynes Mesco, Chad Ayers, Kristen Prinz and Amit Bindra, The Prinz Law Firm
personnel must continue to keep a vigilant eye on rap - idly changing regulations and EEOC guidance. Mental and Emotional Health in Investigations In the United States, internal investigation practic - es are evolving in response to emerging research, regulatory guidance, and increased awareness of how trauma and neurodivergence affect workplace reporting and participation in investigations. Courts, enforcement agencies and professional organisations have increasingly cautioned against rigid or outdated assumptions about memory, behaviour and credibility, particularly in cases involving harassment, violence or other high-stress events. As a result, employers are being encouraged to adopt more trauma-informed, inclusive and evidence-based investigative approach - es that enhance both fairness and reliability while reducing the risk of bias. Trauma-informed investigations Trauma and acute stress can significantly affect how individuals recall, process and communicate infor - mation during an internal investigation. Neurobio - logical responses associated with trauma, including fight, flight, freeze or fawn responses, may occur not only during the underlying event but also during recollection. As a result, individuals may struggle to recall timelines, put events in sequence or articulate peripheral details in a linear manner, even while retain - ing vivid memory of the central experience. Delays in reporting, gaps in recollection, or difficulty recalling dates and the passage of time are common trauma- related responses and should not, standing alone, be viewed as indicators of unreliability or bad faith. Neurodivergence in internal investigations Neurodivergence further underscores the need for flexibility in evaluating witness accounts. Neurodiver - gent individuals may communicate, process ques - tions or express emotion in ways that differ from con - ventional expectations, including differences in eye contact, tone, pacing, organisation or affect. These differences may affect how testimony is delivered but have no necessary relationship to truthfulness. With - out appropriate awareness, investigators may have trouble obtaining information from neurodivergent wit - nesses, or misinterpret neurodivergent communica - tion styles as evasive, inconsistent or unco-operative.
Such deviations from the norm in how someone inter - acts may instead simply reflect differences in cogni - tive processing or social interaction. Witness credibility assessment Taken together, emerging research and professional guidance increasingly recognise that demeanour- based assessments of credibility are unreliable, par - ticularly in cases involving trauma or neurodivergence. Observable behaviours such as nervousness, flat affect, disorganisation or emotional intensity are poor proxies for accuracy or honesty. The best practice for investigators is therefore to ground credibility deter - minations in objective and corroborative evidence, including consistency over time, contemporaneous documents or communications, witness statements and other independent data. Evaluating credibility based on the totality of the evidence, rather than subjective impressions of demeanour, promotes fair - ness, reduces bias and strengthens the defensibility of investigative findings. Attorney–Client Privilege Considerations In Upjohn v United States , 449 U.S. 383, 394-95 (1981), the US Supreme Court held that attorney–client privilege applies to private communications between a client and their attorney if the purpose of the com - munication is to obtain legal advice. This includes when companies seek legal advice through internal investigations. An Upjohn admonition, as derived from the case, is a disclosure given at the outset of an employee interview in an attorney-directed internal investigation. It clarifies that counsel represents the organisation, not the individual, that the interview is conducted to provide legal advice to the organisation, and that any attorney–client privilege belongs solely to the organisation, which may choose whether to waive it. Proper Upjohn admonitions are essential to preserving privilege and avoiding misunderstandings about the role of counsel. Recent case law has reinforced these principles. In a 2025 decision, the US Court of Appeals for the Sixth Circuit confirmed that internal investigation materials created at the direction of counsel for the purpose of providing legal advice remain protected by attor - ney–client privilege and the work product doctrine, even when the investigation also informs business or
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