Who will the court believe? Lessons on witness credibility from recent cases |Barrister at Littleton Chambers,
It’s the ultimate get-out for the lazy legal advisor: “I can’t tell you how it’s going to go, it will all come down to the evidence on the day and who the court believes.” The trouble is that it is so often true. Strong cases unravel after mere minutes of cross-examination, especially where it is one person’s word against the other.
There has been a crop of recent civil court decisions in which judges have given guidance on how to approach a he-said-she-said evidential dispute. What lessons can we learn?
What is credibility?
Credibility is not the same as honesty. Two witnesses can give perfectly honest accounts of the same events; one (or both) of them can be totally wrong. It is not uncommon to read as much in civil judgments.
For the purpose of gleaning some lessons on credibility from recent judgments, let’s assume that the conflict of evidence is not one that will be resolved by proving that one of the witnesses is a liar.
Starting point: is there really a dispute?
In my experience, judges will avoid controversy if they can. If there is a reading of conflicting evidence that indicates honesty from both witnesses, and if it explains where the conflict in evidence has arisen, a judge is likely to find it attractive. This is so even where that necessarily involves some speculation.
In Synclair v East Lancashire Hospital NHS Trust  the claimant told a doctor that his surgical stoma had changed colour. A medical note, written by a different junior doctor, said “stoma normal colour”. The claimant was adamant that this junior doctor had not been present when he told the first doctor about the colour change. At paragraph 19, the judge said:
“…there is in fact no necessary inconsistency between the exchange as the Claimant recalls it and the record in the note. If [the doctor] had indeed said that the slightly darker appearance of the stoma was due to bruising… it seems to me that [the author] could have interpreted that… as meaning that the appearance including the colour of the stoma was normal…”
Though the judge did go on, in any event, to prefer the claimant’s evidence, this demonstrates a judicial tendency to prefer to rationalise two conflicting accounts.
Suggesting methods of rationalising the conflict is a stratagem I have successfully employed more than once. For instance, in a conflict between a client and witness as to how much had been promised under a contract, I was able to suggest that the higher amount recollected by the witness was more in line with the dollar conversion at the time. My client recalled a sterling sum. The witness was adamant that that was wrong, but the judge saw force in it.
The judicial toolkit
Judges, writing judicially and extra-judicially, have sought to identify those analytical tools that are properly available to their colleagues in determining answers to their questions.
The first tool: corroboration
It is trite that the first port of call for a judge assessing the credibility of a witness’s evidence on a given point is to compare it with contemporaneous evidence that does not depend upon human recollection.
The best known statement of principle in this area is that of Robert Goff LJ in The Ocean Frost at paragraph 57, which begins:
“…I have found it essential…when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case…”
In principle, such evidence will fall into one of two categories:
- Contemporaneous records (that is, those produced at the time of an event or soon after).
- Independent “direct” evidence that involved no human intervention (for example, photographs or voice-recordings).
Two recent cases demonstrate the courts’ approach.
Grimstone v Epsom & St Helier University Hospitals NHS Trust demonstrates how an evidential dispute can be resolved using contemporaneous records. The dispute concerned what was said to the claimant at a consultation with her doctor about a surgical procedure. The doctor could not recall what had happened but gave evidence of his “invariable” practice alongside corroborative medical records. The claimant’s evidence was different and spoke to her own recollection of events. The court preferred the records and the doctor’s evidence of his invariable practice.
Documentary evidence is preferred for precisely the reasons one would expect: the claimant had, by the time she gave her evidence, undergone a number of procedures and significant time had passed. She had had numerous conversations similar to the one in question.
Compare Synclair. In that case, the judge preferred the claimant’s evidence to medical records. The author of the records had not been called to give evidence. The key point was the uncertainty surrounding the circumstances in which the record was made. Reading the judgment, one comes to the conclusion that had the mysterious author given evidence of his presence, and that he would not have written “normal colour” if the claimant had suggested that it had changed, such evidence might have carried the day in line with Grimstone.
A practical lesson for litigators, then, is that contemporary records can be golden tickets, but they have to be presented properly to the court.
The second tool: inherent believability
In Caldero Trading v Beppler & Jacobson Limited, Richards J, pointing out the lack of useful documentation to assist in determining the contents of a contract, refers in paragraph 36 to “overall commercial probabilities” as a factor having great importance.
The third tool: internal consistency/reliability of other parts of the evidence
This is another of Richards J’s factors of great importance from Caldero. There are two aspects. First, and most unsurprisingly, if the judge does not believe a witness’s evidence is reliable on point A, and prefers the other side’s evidence, it is open to them to conclude that the witness is unreliable on point B.
Second, is the slightly different question of whether or not this is a witness who tends to speculate or attempts to give evidence on matters about which they cannot properly do so. Gillen J, in Thornton v Northern Ireland Housing Executive formulates the question: “does the witness take refuge in wild speculation or uncorroborated allegations”?
Of course, just because a witness is not believed (or is found to be lying) on one point, that does not mean that they are wrong on another (see, for instance, Arnold J in Gorgeous Beauty v Liu at paragraph 31).
The fourth tool: clouded recollection
Recollections can be affected by passage of time. However, the “clouding” metaphor suggests the invasion of some foreign element that makes the previously pure substance murky.
In Grimstone, it was the interposition between the initial consultation and the giving of evidence of other similar conversations. It can be less concrete. In Onassis v Vergottis  2 Lloyd’s Rep. 403,
Lord Pearce asked if the witness’s recollection had been subsequently altered by unconscious bias, wishful thinking or over discussion with others. He considered:
“Witnesses, especially those who are emotional, who think that they are orally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism…that with every day that passes the memory becomes fainter and the imagination becomes more active.”
I had a case recently in which the court decided that my witness’s recollection was clouded by dislike of the claimant.
The fifth tool: demeanour
This is perhaps the most difficult (and most appeal proof!) tool. In Grimstone, what would the claimant have done if she had been given the advice she said the doctor negligently failed to give? During cross-examination, the claimant refused to answer whether she would have chosen a particular course of action had she been told that it was the best option. As a result, the judge determined that there was no doubt that she would have followed the recommended advice.
A witness’s demeanour can be important, but it is a nebulous concept and one that should be approached with caution. Understandably, emotion can change a witness’s demeanour. Courts will be alive to that. Equally, judges will, understandably, be slow to draw conclusions on demeanour where the witness is one for whom English is not their first language, or their cultural background is one with which the judge is less familiar.
It is important to understand these tools for two key reasons:
- There is a duty on lawyers to give full and frank advice on their clients’ prospects (this includes being able to understand the likelihood of the client’s evidence being accepted by the court or tribunal).
- The tools can be commandeered for case preparation and advocacy.
Assessing witnesses is a discipline reserved par excellence to judges. It is integral to what they do. If advocacy helps a judge to do their job (and do it in the way you want), this is the domain in which knockout blows may be landed.
In Sohal v Suri and another  EWCA Civ 1064, the Court of Appeal considered whether a judge was entitled to decide a dispute relating to the ownership of property, based on the demeanour and credibility of witnesses.
References:  2 Lloyd’s Rep 403
Coram: Lord Pearce
Ratio: Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence:
‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.
Credibility covers the following problems. First, is the witness a truthful or untruthful person?
Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue?
Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them?
Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others?
Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.
For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. and lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken?
On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.’
Lord Pearce also reminded himself of the circumstances allowing the upsetting of a judgment of a lower court, saying:
‘The function of a Court of Appeal is to set aside a judgment that should not be allowed to stand because it occasions a substantial wrong or a miscarriage of justice. That wrong or miscarriage of justice may consist of a judgment in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a judgment in his favour: But the fact that the right party seems to have succeeded in the Court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree.’
and ‘Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.’
This case is cited by:
- Cited – Foodco UK Llp (T/A Muffin Break) and Others v Henry Boot Developments Ltd ChD (Bailii,  EWHC 358 (Ch))The claimants had been persuaded to take up leases on a service area constructed by the defendants. They said that the publicity materials had wildly exaggerated the actual number of visitors, and sought damages for fraudulent misrepresentation.
- Cited – Earles v Barclays Bank plc Merc (Times, Bailii,  EWHC 2500 (Mercantile),  WLR (D) 309, WLRD)
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
- Cited – In re Mumtaz Properties Ltd; Wetton v Ahmed CA (Bailii,  EWCA Civ 610)Former directors appealed against finding as to their personal liability for directors’ and other loans.Arden LJ discussed the task of a judge in fact finding: ‘By the end of the judgment, it is clear that what has impressed the judge most in . .
- Cited – Piper v Hales QBD (Bailii,  EWHC B1 (QB))The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.Held: The Defendant as hirer was under an . .
- Cited – Mcintyre and Another v The Home Office QBD (Bailii,  EWHC B13 (QB))Claim for compensation for injuries allegedly suffered by the claimants as a result of a minor car accident.Held: There was a stark contrast between the parties. The court accepted the version of the events told by the defendants, and the . .
(This list may be incomplete)
Last Update: 29-Aug-16
WITNESS CREDIBILITY: WHAT FACTORS DOES THE COURT LOOK AT? ANOTHER EXAMPLE FROM THE MERCANTILE COURT | Civil Litigation Brief
The case of Excelerate Technology Ltd -v- Cumberbatch  EWHC B1 Mercantile was looked at in an earlier post in relation to the judge’s observations about the costs budget*. It did, however, contain important observations about the way in which judges assess the credibility of witnesses.
There is an excellent post by Janna Purdie on the Lexis Nexis Dispute Resolution Blog discussing this case in relation to the credibility of witnesses.
REVIEW OF GUIDANCE IN RELATION TO CREDIBILITY
HH Simon Brown QC reviewed the guidance given to judges in relation to assessing credibility.
- This is essentially a case where credibility-the credibility of the First Defendant and Mr Osmond in particular-is crucial. The most compendious judicial statement on this is be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis  2 Lloyds Rep 403 at p 431:
”Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others?Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability.All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
This is amplified by Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost),  1 Lloyd’s Rep. 1, p. 57:
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” [emphases added].
- The absence of evidence can be as significant as the presence of it. Arden LJ in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others EWCA Civ. 61 stated:
11. By the end of the judgment, it is clear that what has impressed the judge most in his task of fact-finding was the absence, rather than the presence, of contemporary documentation or other independent oral evidence to confirm the oral evidence of the respondents to the proceedings.12. There are many situations in which the court is asked to assess the credibility of witnesses from their oral evidence, that is to say, to weigh up their evidence to see whether it is reliable. Witness choice is an essential part of the function of a trial judge and he or she has to decide whose evidence, and how much evidence, to accept. This task is not to be carried out merely by reference to the impression that a witness made giving evidence in the witness box. It is not solely a matter of body language or the tone of voice or other factors that might generally be called the ‘demeanour’ of a witness. The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence. [emphasis added].
The inferences that the judge drew from the witnesses in that case are summarised in Janna’s article.
OTHER JUDGMENTS ON THIS ISSUE
I have observed before that many of the important points of principle relating to the credibility of witnesses can be found in judgments of Simon Brown QC most markedly in Piper -v- Hales EWHC B1 (QB)
- The guidance about how courts approach this is given in the extra-judicial writing of the lateLord Bingham of Cornhill approved by the courts is apposite. In “The Judge as Juror: The Judicial Determination of Factual Issues” published in “The Business of Judging”, Oxford 2000, reprinted from Current Legal Problems, vol 38, 1985 p 1-27, he wrote:
“. . . Faced with a conflict of evidence on an issue substantially effecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties’ lives or fortunes, how can and should the judge set about his task of resolving it ? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? . . .
The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree.
OTHER POSTS ON WITNESS CREDIBILITY
This issue is also discussed in a number of other posts.
Determining the credibility of a witness (Excelerate v Cumberbatch) |January 28, 2015 LexisNexis.
In factual disputes, the key evidence on which a case can succeed or fail may be the given by the witnesses. Their credibility is key, but what makes them credible? (Sorry Benedict fans, whilst a Sherlock like approach may assist with dealing with cross examination, this particular Cumberbatch has nothing to do with Sherlock.)
The way in which a witness will give evidence and the way in which they deal with the stress of cross examination will vary from witness to witness. However, there is much that can be done throughout the litigation process to make the cross examination process easier for the witness and for it to really highlight the basis on which the case is being forward.
Judge Simon Brown QC in Excelerate Technology v Cumberbatch and Red Foot Lexis Citation 6 sets out authorities you need to be aware of when thinking about witness credibility and also highlights how those factors play out in practice.
Examples of the factors considered were:
- The witnesses continually repeating the question on cross examination to buy themselves time to think about an answer (para 17). Compare this to a witness asking for the question to be repeated by counsel to enable them to slow down the cross examination to enable them to collect themselves.
- Inconsistency between the various court documents. For example, in relation to the creation of a spreadsheet: ‘Mr Cumberbatch stated in his witness statement prepared for a summary judgment application that he did not know why he asked for this information. In his amended Defence, it was contended that he wanted it so that he could see how much profit he had made so as to assist him and his lawyers in his redundancy settlement negotiations. . In his oral evidence, he advanced another inconsistent, version, namely, that he wanted to be able to show that there was not a genuine redundancy situation.’ (para 22). Inconsistencies such as this should be picked up by the solicitor during the litigation process.
- Large numbers of inconsistent unsubstantiated explanations on issues. The court held: ‘In my judgment, each of these contradictory explanations, typical of both Mr Cumberbatch and Mr Osmond- are made up to suit as at the time when confronted and are untrue.’ (para 25). Contemporaneous evidence is key. Seek to substantiate all factual recollections with evidence
- Inconsistency between court documents and cross examination evidence: ‘The original position set out in the Defence and witness statements is that he was ‘just testing the market’; with his fledgling company. In cross examination he was asked what he would have done if he had received a positive response. He was pressed repeatedly and prevaricated saying he would have had to think about it. That is inconsistent with the earlier explanation which could only mean that he would not have taken on the contract at all.’ (para 30) ). Inconsistencies such as this should be picked up by the solicitor during the litigation process.
- Failure to provide evidence to explain how they came to have certain information drew an adverse inference from the court that this was because to do so ‘they would have to confess’ where they had obtained ‘such self serving falsehood’. (para 46). Practitioners should seek to deal with such issues rather than leave the witness to come under fire on cross examination. Check that explanations can be provided as to where key information was obtained.
- Unimpressive witness evidence was given: She was a most unimpressive witness. She was belligerent and argumentative in the witness box and was unable to give any satisfactory explanation as to why Bence was secretly trying to procure an ‘independent audit’ that was biased against the Claimant upon a government contract renewal. Indeed, she was even unable to recognise the obvious that it was. She displayed a great hostility to the Claimant even to the extent of diminishing its patent capabilities such as being able to provide the necessary bandwidth for CFS. She disputed that the Claimant brought the CFS contract to Bence but the contemporaneous documentation made it clear that it did. She was not prepared to accept that the Claimant was the market leader in the field of supplying satellite facility to ERVs although that is not in dispute between the parties who would be expected to know.’ (para 47). Witnesses tend to be argumentative when challenged. Laying the groundwork beforehand leaves witnesses in a less vulnerable position on the witness stand.
- Submissions that there was no evidence on issues when a forensic piecing together of evidence showed that there was (para 52). Practitioners need to do the ground work in piecing together the evidence.
- Failure to provide information which clearly was disclosable: ‘…there has been no disclosure of quotes / estimates / invoices to show how the sub-contract price was calculated. Someone had to work out how many man hours would be required to do the fitting and perform the ongoing service requirements. ‘ (para 71). Disclosure can be an uphill struggle with some clients but the absence of key information will adversely affect the case and will provide fodder on cross examination.
The key point to take away from this judgment is the need for practitioners to ensure that a seamless approach to the evidence is taken throughout the proceedings and that any inconsistencies are uncovered and dealt with.
Inconsistencies may arise between disclosure and the pleadings, witness evidence and disclosure, witness evidence and the witness evidence from the other side. Dealing with inconsistencies at an early stage, checking that evidence is being adduced which clearly should be available and ensuring that the witness is aware of all the relevant contemporaneous documentation will make that witness’s experience in cross examination that bit more bearable and will lessen the stress of worrying about them.
Judge Simon Brown QC decision is a must read decision for those working with witnesses but if in any doubt about what you are aiming for read his comment at para 18:
By contrast, the Claimant’s witnesses presented themselves as straightforward and open in all their dealings. The key witness, Beth Evans, was unshaken in her evidence and displayed a complete forensic command of all the material she has had unearthed and pieced together. She is a very impressive executive and witness.’
LexisPSL DR subscribers can read the full analysis of this decision which includes the appeal decisions.
How you organize your facts can determine whether or not the jurors listen to your witness.
Too often, lawyers think that they can dump a pile of facts on the jurors and expect them to reach the correct verdict. In reality, facts by themselves aren’t enough to win your case. You can’t just dump a pile of random facts on the jurors and hope that return with the right verdict. How you organize your facts will affect the jurors’ views about your case and can even change the outcome of your trial.
One of the easiest ways to shape the jurors’ views about your case is to take advantage of a theory called “primacy.” Psychology professor William D. Crano defined a primacy effect as when “the message presented first exerts a disproportionate impact on an individual’s opinion.”
Basically, what you hear first colors the way you view everything else that follows. Don’t believe me? To experience how big a role primacy can play in the way jurors view your case, take a look at these two different scenarios:
The first scenario involves a 37 year old man. Less than an hour ago, his wife told him that (after several years of unsuccessfully trying to start a family), she is pregnant with their first child — a son! As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.
Now compare that to the second scenario:
This scenario also involves a 37 year old man. Six years ago, he was convicted of child molestation. As the man walks past the park on his way to work, he sees a playground filled with young children playing on merry-go-rounds and swinging on the swing sets. He stops for a moment, standing just outside the perimeter of the playground. His eyes are drawn to a young boy who is climbing to the top of the slide. As the boy lands at the bottom of the slide, a large grin man breaks out on the man’s face.
Isn’t it amazing how a single fact at the beginning of the story completely changes the way you view the rest of the facts? In the first scenario, you probably thought to yourself, “What a lucky man! He’s thinking about the future when he’ll be taking his own son to the playground.” In the second scenario, you probably thought, “Somebody call the police before that creep abducts the little boy!”
The facts didn’t change — only your perception of the facts changed. In both scenarios, the men did exactly the same things, but you ascribed completely different intentions to their actions. What you heard first had a disproportionate impact (positive or negative) on everything else that you heard.
It works the same way in the courtroom. The primacy principle affects every aspect of your trial, but its impacts can be most apparent during opening statement and direct examination. Here’s an example of how organizing your presentation of facts can dramatically affect how jurors perceive your direct examination.
Recently, I was critiquing a criminal jury trial where the prosecution was arguing that the defendant acted as an intermediary agent to facilitate a drug deal between an undercover police officer and a drug dealer. The defense’s theory of the case was that the defendant’s innocent actions and comments were misconstrued, and the drug dealer acted independently when he sold the cocaine to the undercover officer.
During their case-in-chief, the defense called the defendant to testify on his own behalf. Obviously, they must have felt that his testimony was critical to their case, and they wanted the jury to believe his version of events. But take a look at the first three questions his lawyer asked him:
Q. Where do you work?
A. I’m disabled — I haven’t worked in more than 10 years.
Q. Have you ever been convicted of a felony?
Q. How many times?
A. Three times.
Take a moment to think about how these facts will affect everything else the jury hears. Now that they know he’s an unemployed, 3x convicted felon, do you think that the jurors will be more likely, or less likely, to believe what he says?
While these facts may have been important for the defense to elicit, by bringing them out at the very beginning of his testimony, the attorney corrupted the jurors’ view of her client and destroyed his credibility. Rather than listening to him from a neutral (or even positive) viewpoint, now they were forced to view all of his testimony through the lens of “The Unemployed, 3x Convicted Felon.”
Rather than hearing, “I was standing on the porch,” the jury will hear, “The Unemployed, 3x Convicted Felon says he was standing on the porch.”
Instead of, “Two people knocked on my door and asked if Archie was home,” they’ll hear, “Two people knocked on The Unemployed, 3x Convicted Felon’s home and asked if Archie was home.”
The jurors won’t hear, “I didn’t do it!” They’ll hear, “The Unemployed, 3x Convicted Felon says he didn’t do it.”
How do you want jurors to view your witness? What lens do you want them to look through when they’re viewing your witness’s testimony? If you want jurors to view your witness’s testimony in a positive light, you need to apply the principle of primacy and avoid developing negative facts at the beginning of the direct examination.
Does that mean you should completely avoid the negative parts of the witness’s testimony? Of course not. If you don’t present the negative facts during your direct examination, your witness will get crucified during cross-examination. But just because you need to bring out bad facts doesn’t mean you need to highlight them. Ask about the negative facts somewhere in the middle of the witness’s testimony, when the jurors are less likely to focus on them.
When you start your direct examination with negative facts, you run the risk of destroying your witness’s credibility. Instead, apply the principle of primacy, and you’ll give jurors the opportunity to view your witness’s testimony in its best possible light.