Monday, August 13, 2007

To Believe ... or Not to Believe

In any trial, evidence is conveyed to the jury via the witnesses.

That is, conveyed via the ‘credible witnesses. But how do we spot those?

Well, first we look at the basics of what makes the perfect credible witness. It’s someone who is competent to give the evidence they’re giving; someone who’s capable of knowing what he’s testifying to; who was actually present wherever the thing happened; who paid enough attention give a good account of what happened, and; someone who will honestly present the information fully, without any reason to subtract from, or add to the truth.

In other words, a perfectly credible witness someone who’s not out to deceive, correctly perceives all things observed, has no bias, forgets nothing, and does not make mistakes.

There is no such thing as a perfectly credible witness.

All witnesses come with baggage: the cop with an excessive force complaint in his past; the hooker who was high when she saw the crime; the accused murderer’s ex-wife with an ax to grind.

Okay then, perhaps it’s more accurate to say that evidence is conveyed by the witnesses whose testimony the jury actually believes— the somewhat credible witnesses.

Those ‘somewhats’ abound in the Cuadra/Kerekes case, with some ‘somewhats’ more credible than others.

During the Commonwealth’s case, Harlow and Joe's attorneys will cross-examine not just on facts, but in attempts to undermine or impeach the credibility and reliability of every prosecution witness.

They’ll try to show that the witness is biased against Harlow and Joe. They’ll suggest that some have a financial or personal stake in the outcome of the trial. The defense will also interrogate witnesses about any past felony convictions or about any past crimes that involved dishonesty.

The District Attorney can (and almost certainly will) raise objections to many of the credibility questions posed by the defense. The judge will rule on an ongoing basis—sometime in favor, sometimes against— over and over again. And as soon as the prosecutor is done with his case... he'll turn right around and heap similar calumny upon every single defense witness who takes the stand. It’s the nature of the process.

Juries are fickle creatures, but not altogether unreasonable. They tend not to believe every little thing that an individual witness says. They often believe almost none of what one guy says and then most of what the next guy says. There are instances where the jury doesn’t fully believe anything that anybody has said... but the point is, they do seek to piece things together from the competing versions of what happened. They’re willing to choose the relatively more-credible of two stories, even when neither tale sounds all that objectively credible.

So what is a credible witness? It’s the guy who you believe slightly more than the guy who says that the other guy has it all wrong.

- Both PC & KM contributed to this story.