Transcript Teal - CLEAR

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
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 Conference
September 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 Conference
September 30 – October 2
Kansas City, Missouri
Don’t assume credibility based
on judgment of others
Though 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 Conference
September 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 Conference
September 30 – October 2
Kansas City, Missouri
In deciding upon the credibility
of a witness
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?
Presented at the 2004 CLEAR Annual Conference
September 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 manner
2) Poor physical presentation
3) Nervousness or confusion
4) Not dynamic OR too dynamic/slick
5) Suspect relationship or motive
Presented at the 2004 CLEAR Annual Conference
September 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 Conference
September 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 Conference
September 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 Conference
September 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 Conference
September 30 – October 2
Kansas City, Missouri
If disaster strikes on
cross-exam:
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.
Presented at the 2004 CLEAR Annual Conference
September 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]
Presented at the 2004 CLEAR Annual Conference
September 30 – October 2
Kansas City, Missouri