I mention the show Law & Order a fair amount in my blog posts – not because it’s the most accurate show in terms of what happens during someone’s criminal case. It’s not. But it is an easy reference when explaining some of the underlying concepts in criminal law and procedure, such as trying to address witness credibility. Read on for tips on how to “legally call someone a liar.”
Some of the more dramatic scenes of any given Law & Order episode are during trial when the prosecution and defense are examining witnesses. The attorney gets animated, the witness gets flustered, and next thing you know they’re yelling at each other while the other attorney is yelling at the judge. Things can get heated, am I right??? I personally love the “permission to treat the witness as hostile” line. Folks, that’s not a real thing!
While the drama in these scenes is exaggerated compared to what a criminal trial is usually like (there are exceptions, of course), this strategy of testing the credibility of witnesses is an accurate portrayal. As a criminal defense attorney, in fact, much of what I do is tied to the credibility of witnesses. But in real life, I don’t actually call a witness hostile (as much as I’d like to sometimes)!
Witness credibility is a key issue
A prosecution’s case depends on the evidence they have against you. And that evidence, in one way or another, comes from witnesses. Witnesses, generally speaking, are people who saw you commit the crime or saw you around the time or location of the crime. There are also experts that testify, but those are a special category of witnesses.
Witnesses testify to what they saw (or think they saw), but just because a witness says something happened doesn’t mean a judge or jury needs to believe their testimony. Not all witnesses are credible. If a witness is not credible, his or her testimony is not credible. It’s as easy as that.
OK, it’s not really as easy as that …
Attacking credibility is a complicated assessment
There are a number of factors that could make a witness and his or her testimony not credible. As an attorney, you have to have a substantial amount of experience handling criminal cases, and taking these cases to trial, to know how to approach this issue.
Because it’s definitely not as simple as walking up to the judge or jury and telling them that this person is lying. In fact, as an attorney, I can’t do that directly. Instead, I have to approach this from a more formal angle.
Our memory plays tricks on us
First off, a witness doesn’t need to be outright lying to be found not credible. You’d be shocked at the volumes of well-established research on how often the testimony of eyewitnesses misses the mark. As humans, our eyes play tricks on us. Unconscious biases impact the way we perceive events. And our memory of what happened can get worse over time, sometimes over a very short period of time. And don’t even get me started on eye-witness identification (did you know most folks can’t distinguish between two people of a different race reliably AT ALL!? See this link and this one for more).
We think we saw her robbing the store, but “it was dark” … but “she was far away” … but “her car was driving away“. But, but, but.
A witness’ story is rarely ever exactly what it seems. Don’t get me wrong; there are, of course, instances in which they just plain saw the perp do it. But when someone is testifying in a criminal case as to innocence or guilt, it is not a “maybe” type of assessment. There is a level of certainty that needs to be proven and that needs to stand up against my cross-examination at trial. Otherwise, the testimony is not all that credible.
Not all witnesses are created equal
Additionally, there are factors relating to the witness him or herself that may make the testimony not credible. Maybe there are witnesses who are getting a reduced sentence on their own crimes in exchange for testifying against you. Maybe a witness is known to have a long-time grudge against you. Or maybe someone has changed their story about your involvement in the crime.
We can likely raise these issues at trial to discount the credibility of the testimony and the witness. Remember, one person’s testimony is just that: one person’s take on the issue. Testimony is not truth.
To trial or not – credibility matters all the same
Not every criminal case goes to trial, of course. In some cases, it just makes sense to accept a plea deal. In other cases, trial isn’t really an option, for a number of reasons.
Part of my job as your defense attorney is working with you to assess which route is in your best interest: accepting a deal or taking the issue to trial. This is a case-by-case assessment that depends on a lot of factors, among them being the anticipated credibility of the witnesses the prosecution plans to put on the stand.
What’s more, just getting a witness to say, “I don’t remember” isn’t always enough. And there is a difference between being able to refresh witnesses’ recollection, impeach witnesses with prior inconsistent statements, and actually being able to get those prior statements into evidence themselves. In most cases, effective cross-examination of a witness leaves off before asking the natural question: “So were you lying then or are you lying now?” Good defense attorneys just let the jurors draw those conclusions for themselves and argue during closing that NONE of the testimony can be trusted.
Let Justie Get Justice for You!
Having worked as a criminal attorney for many years, I know what to look for in witnesses and their anticipated testimony. And the benefit of having previously served as an Assistant District Attorney is that I am familiar with the strategy and approach prosecutors often take in handling certain kinds of cases. It’s a good advantage to have on your side, trust me!
If you have a criminal case, it’s important to find an attorney with the experience necessary to handle your case. Contact me to schedule a free initial consultation to talk about your case or schedule directly online here.
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