Thursday, November 14, 2013

Daugerdas Retrial Jury Instructions - Part 03 Credibility of Witnesses (11/14/13)

Judge Pauley's instructions on credibility of witnesses (see the full set here) is:
Credibility of Witnesses  
You have had an opportunity to observe all of the witnesses. How do you evaluate the credibility or believability of those witnesses? The answer is that you use your plain common sense. Was the witness candid, frank and forthright? Or, did the witness appear evasive as if he or she was trying to hide something?  
How much you choose to believe a witness may be influenced by the witness’s bias. Does the witness have a relationship with the Government or a defendant which may affect the witness’s testimony? Does the witness have some incentive, loyalty or motive that might cause the witness to shade the truth? Or does the witness have some bias, prejudice or hostility that may have caused the witness, consciously or not, to give you something other than a completely accurate account of the facts?  
You are not required to accept testimony even though the testimony is uncontradicted and the witness’s testimony is not challenged. You may decide because of the witness’s bearing or demeanor, or because of the inherent improbability of the testimony, or for other reasons, that the testimony is not worthy of belief.  
If you find that a witness willfully testified falsely, that is always a matter of importance that you should weigh carefully. If you find that any witness has lied under oath, you should view the testimony cautiously and weigh it with great care. It is, however, for you to determine how much of the witness’s testimony, if any, you wish to believe.  
Thus, there is no formula by which you can evaluate testimony. You determine for yourself every day and in a multitude of circumstances the reliability of statements made to you by others. You may consider the interest of any witness in the outcome of this case, and this is true regardless of who called or questioned that witness.  
Indeed, the issue of credibility may, but need not, be decided in an all-or-nothing fashion. If you find that a witness testified falsely in one part you still may accept his or her testimony in other parts, or you may disregard all of it. That is a determination entirely for you, the jury. 
Credibility is a complex issue.  I can't add anything to Judge Pauley's traditional formulation.

Although there is a large body of literature on the issue, I will point readers to two sources.

First, John L. Kane, Judging Credibilty (ABA Practice Essentials 2007), here.  Judge Kane is a federal district judge with considerable experience and careful thinking about the issue.  I will excerpt extensive portions on credibility below, but for students and practitioners, the whole article is a wonderful and enlightening read.  That said, I found the following excerpts, though lengthy, helpful to me.
A few brave souls have attempted to parse the elements of credibility, but this essential function is left largely to the mysteries of intuition. Although demeanor evidence can mislead, it is considered a reliable basis for finding credibility. Does the witness hesitate or stammer or show fear in answering questions? Reliance on demeanor vests wide discretion in the fact-finder. As Judge Jerome Frank, no slouch when it came to pushing the judicial envelope, observed, the methods of evaluating oral testimony “do not lend themselves to formulations in terms of rules and are thus, inescapably, ‘un-ruly.’” 
* * * * 
This stress on courtroom demeanor results in an entirely subjective evaluation. Witnesses are observable only on the stand and for a very short time. For most of them, testifying is an unusual experience, and they can be expected to be on edge. Judges and juries know little about what makes one person stammer or hesitate. There certainly is no time to delve into the subconscious of each witness. Perhaps the examining attorney’s bright-red tie reminds the witness of her funny uncle or the bailiff’s bald head triggers repressed emotions toward the teacher who failed her in algebra. Will she stammer or hesitate while she gets her thoughts in order?  
The nostrum that a person telling the truth has nothing to fear and therefore no reason to stammer or hesitate is based on the myth that being subjected to charges of perjury for falsely testifying under oath is sufficient to exact truthfulness from anyone. If the oath actually had that effect, why would we need to probe and question? Not only are prosecutions for perjury rare, but the oath’s archaic language and the ritualistic tone and breakneck speed with which it is usually administered suggest that its meaning and import are seldom comprehended beyond the level of hearing a cashier say “Have a nice day!” 
Ever since social Darwinism replaced old-time religion, the oath has not meant much. The individual belief that false testimony results in eternal damnation never did affect the honestly—but erroneously—perceived recollection, nor would a rejection of such a belief necessarily give the nonconformist the psychological freedom to lie. This is particularly so when a witness is recounting his intent or explaining the reasonableness of his actions. Time heals all wounds, and many an honest person comes to believe verily in post hoc rationalizations. If the oath is ineffectual, what saving grace can we expect from jury instructions? The standard credibility instruction tells the fact-finder to consider the witness’s strength of memory, ability in the described circumstances to see and hear, and the clarity with which he is able to recall events. Tone of voice, shades of expression, and gestures are also to be considered. Motive and interest are said to create bias. The natural and acquired experience that an observant person uses to form an opinion of whether to trust the veracity of someone in the important transactions of his own life is said to be the most important qualification of all. 
 * * * * 
The formalized rubrics of folk wisdom for judging credibility are of little, if any, value. What natural and acquired shrewdness is involved? There are no criteria for determining such skills in either judicial or jury selection, nor is the judge of credibility possessed of any greater awareness of unconscious influences than the witness who is subject to them. The lack of rules (un-ruliness) in determining credibility with the concomitant wide discretion vested in the fact-finder presents inherent difficulties so insurmountable that appellate courts throw up their hands and say that questions about the credibility of witnesses are not reviewable except in extreme circumstances. 
Trial seminars are filled with tips on interpreting nonverbal cues. People constantly send all kinds of unarticulated messages, but interpreting them is at best the product of intuition or rank speculation and at worst, unmitigated legerdemainia. We are told, for example, that a witness or potential juror is reacting negatively to the questioner by folding her arms across her chest—and an individual who frowns and squints is assumed to be angry or hostile. But is it not equally plausible that a witness or juror with a dour expression is making an extra effort to focus and concentrate on the questions? “I squint and frown,” a juror in a patent case once told me, “for the same reason I chew pencils when I’m doing a crossword puzzle. I’m thinking, tuning everything else out.” All those clenched teeth, frowns, and squints may give some people headaches, but it does not necessarily mean they are rejecting a point or are hostile to the examiner. If instructions have little effect and folk wisdom is unreliable, can cross-examination save the day? 
We are taught to give great weight to cross-examination, but the commentators of yesterday were unaware of what the excessive reliance upon depositions has done to the lawyer’s “greatest weapon.”We may still see effective cross-examination in criminal cases where depositions are rarely permitted, but in more than one civil case, lawyers have told me they cannot cross-examine because the witness was never deposed. Today’s cross-examination usually consists of a tedious reiteration of the testimony on direct, with evocations of prior inconsistent statements. 
* * * * 
Here is a thematic process that I find useful, though certainly not definitive. Two underlying principles govern: not prejudging credibility, and ruthlessly examining your own prejudices. From this flows a principle of universal application regarding the nature of deception. 
First, leave the conclusion on credibility uncharted and find it later rather than work forward from it. Making conclusions as the events happen is like building a house of cards and watching the entire edifice tumble when a joker is added to the roof. It is not simply a matter of keeping an open mind until all the evidence is in, as we instruct juries to do; it is then and only then that the process should begin. While the testimony takes place, listen carefully, paying attention to the slightest nuance or dissonance.
* * * * 
Second, impartiality is essential to reaching a just conclusion, whether ruling on an objection, deciding on the merits, or determining credibility. Achieving impartiality is, however, easier said than done. It is not a matter of wishing it so or declaring yourself to be impartial. In fact, it is not a process leading to an objective state of mind. Rather, it is intensely subjective. It requires you to dredge the subconscious for your own prejudices and predilections. To deny that you have prejudices is illusory; to recognize them is an act of relentless searching. Only when the prejudice is recognized can it be removed from the decisional process. 
* * * * 
The first is that the witness who speaks truthfully may say what is false in fact and the witness who intends to falsify may inadvertently speak the truth. Eyewitness testimony is notoriously unreliable. The witness may honestly believe the person he identifies is his assailant and yet be mistaken. In a gang-related case, a witness may fear repercussions and deny an identification he honestly believes to be true yet is not.  
The second principle is that lying is not necessarily speaking falsely; it is speaking what you do not believe. Deception is withholding what you think or believe in order to create a false impression in or a misunderstanding by the listener. That is the essence of a Ponzi scheme. 
The third principle is that it is not possible to believe or disbelieve based entirely on the character of the speaker, who may be mistaken, or on the understanding of his character, which may be wrong. Credibility therefore demands an evaluation of the substance of the communication. That requires a process for discovering what people can be persuaded to believe. The first essential is to cut through the clutter of fallacies. 
* * * * 
[C]credibility determinations are made under conditions of uncertainty. This leads to what I call the principle of consonance:A statement must sound as if it makes sense and be capable of being easily understood. Most often, a lack of credibility is found when a statement is inconsistent with an awareness of the social knowledge of people; the conditions required for living together; or shared values, interests, and aspirations. 
These commonsense ingredients are shaped into what we accept as true and, therefore, what we regard as credible. This sense of consonance, or harmony with the world as we know it, is what makes us believe a statement is right.  
* * * * 
More than analytical rigor, judging credibility requires imagination and empathy for the human condition. To paraphrase the novelist Frank Delaney, we join our myths with facts according to our feelings, and we choose what we believe from what we are told.We bring to the facts our feelings, our experiences, and our desires. What we believe is what harmonizes the totality of this combination. If the spirit of the law is to be grasped, how facts and belief merge is the central concern. Certainty is never possible, but the development of belief does not require certainty. It requires persuasion.
Also, readers might like the following article:  Elaine D. Ingulli, Trial by Jury: Reflections on Witness Credibility, Expert Testimony, and Recantaton, 20 Val. U. L. Rev. 145 (1986), here.  A short excerpt:
[T]he jury is trusted to make the best possible evaluation of a witness, because the jury has the opportunity to observe the "demeanor" of each witness: the nonverbal, intangible evidence that can be derived from observing the eyes, hands, face, and body movements of a person as he gives his sworn testimony in open court. It is standard wisdom that the jury is capable of making such discrimination, despite some evidence that the average person is not particularly skilled at evaluating the truthfulness of others. One expert on nonverbal behavior argues that his own research, and that of most others, found that, in judging whether someone is lying or truthful, few people would do better than they would if their choices were completely random." That is not to say that some jurors might not be very good at detecting liars, or that most people cannot be trained to recognize nonverbal clues to lying and truthtelling, but only that the average person, including the average juror, is not necessarily very skilled at detecting lies based on the demeanor of a witness.
In other words, the myth of jurors making these determinations well may not always be consistent with the reality.  But so long as we engage the myth and it works most of the time, with other systemic, safeguards, we can have confidence in the system of justice.

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