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.

Fourth Circuit Finds Prosecutor Abuse for Comment on Credibility and Questioning Character Witness but Affirms Anyway (3/27/13)

In United States v. Woods, 710 F.3d 195 (4th Cir. 2013), here, Woods "was convicted of numerous charges arising from a tax fraud scheme operated through his business of preparing income tax returns for private individuals."  He "was charged in a thirty-four count superseding indictment with willfully assisting the preparation and presentation of false and fraudulent tax returns to the Internal Revenue Service (IRS), in violation of 26 U.S.C. § 7206(2) (Counts 1-12); wire fraud, in violation of 18 U.S.C. § 1343 (Counts 13-22); identity theft, in violation of 18 U.S.C. § 1028(a)(7) (Counts 23-32); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts 33-34). "  The gravamen of the Government's claims was that Woods:

added fraudulent information to clients' tax returns in order to qualify the clients for substantial tax refunds. For example, the evidence showed that Woods listed on the returns various educational, business, and travel expenses never incurred by his clients. Also, Woods falsely listed as dependents on several clients' tax returns the names of individuals who were patients of the VA, including their birth dates and social security numbers. The government's witnesses testified that Woods charged clients a $500 premium for each false dependent included on a tax return. The government maintained that Woods stole the names of the false dependents from the VA computer system, to which he had access through his employment as data warehouse manager.

This is a variation of a theme for abusive tax return preparers.

I address here two of the issues on appeal.  First, is the issue of whether the prosecutor improperly injected his belief as to witness -- the defendant's -- lack of credibility.  Second, is the issue of whether the Government improperly questioned a defense character witness by assuming Woods' guilt.  One problem in the case is that Woods represented himself, hence he was not meticulous at preserving objections and otherwise comporting himself with his best defense.