witness credibility: dream or nightmare? david w. monahan assistant attorney general consumer...
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Witness Credibility: Dream or
Nightmare?David W. Monahan
Assistant Attorney General Consumer Protect. & Antitrust
Div. Mass. Office of the Attorney General
Presented at the 2004 CLEAR Annual Conference
September 30 – October 2 Kansas City, Missouri
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
Black’s Law Dictionary defines CREDIBILITY:
Worthiness of belief; that quality in a witness which renders his evidence worthy of belief.
American Heritage Dict. defines CREDIBLE:1) Believable, plausible;2) Trustworthy, reliable.
(Is a trustworthy person always believable?)
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
Importance of credibility in a legal proceeding:
Bears upon how much CREDIT to give the testimony.
An attorney must assess credibility as it affects:
1) The ability to determine what the facts are.
2) The ability to persuade a trier of fact as to what the facts are.
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
Don’t assume credibility based on judgment of
othersThough witness was found credible
by investigators/board members, attorney should make an independent assessment.
But…Foster good relationships with those
other players in the process.
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
In deciding upon the credibility of a witness
An attorney should consider:1) Is the witness capable of knowing
thoroughly about the subject?a) Was the witness present, involved in the transaction, etc.?b) Were conditions such that the witness was able to know the true facts, clearly observe the occurrence, witness not mistaken, deceived, etc.?
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
An attorney should consider:
2) Is the witness likely to honestly relate the matter fully as the witness knows it, without any purpose or desire to deceive, suppress, or add to the truth?
In deciding upon the credibility of a witness
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
Trustworthy v. Believable
How credible IS the witness? v.How credible does the witness APPEAR?
Factors which may hinder perceived credibility include:1) Poor speaking manner2) Poor physical presentation3) Nervousness or confusion4) Not dynamic OR too dynamic/slick5) Suspect relationship or motive
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
To help you assess the credibility of a witness:
1) Utilize your investigators to help you prepare and interrogate.
2) Ask a lot of questions to test memory, inherent consistency. Then ask again.
3) Don’t be afraid to get tough. 4) Anticipate what opposing counsel
will ask, and ask those questions.
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
To help you assess the credibility of a witness:
5) Insist that the witness disclose any interest, connections they have.
6) When possible, investigate the credibility of your witness.
7) Convey their obligation to tell the truth.
8) Observe physical cues.9) Engender trust.
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
If your witness is not credible:
1) Don’t offer their testimony, except for limited purpose.
2) To the extent you offer testimony, be prepared to address shortcomings.
3) Don’t assume you have no case. Consider other sources.
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
Preparing a credible witness to let their credibility show:
1) Encourage them to take or review notes, make an outline or timeline.
2) Run through testimony, for comfort, and to aid speaking manner.
3) Warn against embellishment, detours.
4) Discuss proper attire.
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
1) Try to patch up on re-direct. Show that your witness is credible even if they don’t appear to be.
2) Try to narrow focus, discount importance of non-credible testimony.
3) Argue that other evidence supports your case, as does justice.
4) If you were duped, you may be obliged to withdraw the charges.
If disaster strikes on cross-exam:
Presented at the 2004 CLEAR Annual ConferenceSeptember 30 – October 2 Kansas City, Missouri
• David W. Monahan Assistant Attorney General Consumer Protection and Antitrust
Division Office of the Attorney General One Ashburton Place Boston, MA 02108 617-727-2200, x. 2954 [email protected]