“LIAR!” You snarl, pointing at the sniveling, twitchy man on the witness stand. Doesn’t every lawyer dream about doing that some day? Doesn’t nearly every litigation client tell you that his chief antagonist is a liar? It is such a strong word – the ”L-Word”, that we rarely pull it out and use it against someone, and then only if the lie is so obvious and so foul that there is no doubt that the sniveler is worthy of such public scorn. We Americans are a truthful people, and we rely on truthful information from others to get us through life. If we would all agree – like the Cub Scouts do – to tell the truth all the time, then life would go so much smoother.
We all cannot even agree, however, on what constitutes a lie. Is a lie the opposite of the truth? Hardly. The truth is immutable. The truth is a fact. The truth “is what it is”. A lie is told, and that is where the trouble starts. How do you describe a scene with words? Are you truthfully describing what happens in a room, when you are intentionally omitting to tell what you know is simultaneously happening in the closet? We have all heard the parable about the group of blind men describing an elephant, one touching the trunk, one touching a leg, one touching a tusk, and the other touching the tail. Each one could not believe the others’ description of the elephant and thought for sure they were describing a different animal. Is each of them lying?
The problem with pinning down the spoken word as being a “lie” is the inherent limitation of speech to describe the complex, multi-dimensional layers of truth that swirl around our lives. Can you tell the truth about a conversation without telling how fast your heart was beating, or what music was being played in the background, or the fact that the smell of perfume was making you sick at the time? Is telling the “whole truth and nothing but the truth” essential to telling the truth, or is that part of the oath even possible to achieve? Can you tell the whole truth when your brain begins to relentlessly forget everything it just took in through the eyes, ears, nose, and skin the next instant after observing it? What about false memory syndrome? Have you ever felt so sure you remember doing something that you could swear you remember it, only to concede to the chorus of contrary family members that you must somehow be… mistaken? What are we to make of that? How do you know if your own witness is remembering something accurately when he testifies? And if he is not remembering something accurately, is he a liar, or is it just his brain telling lies through false or corrupted memories? In criticizing the credibility of a witness’s delayed identification of a defendant at trial, Justice Pincham wrote: “Of course, memories fade and appearances change during the passage of time. Thus, the passing of time itself may discredit an identification.”[ People v. Jefferson, 183 Ill.App. 3d 497, 539 N.E. 2d 211 (1st Dist. 1989) (dissent) citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972).] In civil cases, it often takes years for a witness to an event to testify about the event at trial. The clarity of memory is, thus, always vulnerable to a challenge.
The clever defense attorneys in U.S. v. Tucker, wanted to discredit the government’s star witness against their client by claiming that the witness suffered brain damage from inhaling dry-ice fumes (i.e., carbon dioxide).[ 773 F. 2d 136 (7th Cir. 1985).] The defense team put forth a psychiatric expert who said that the witness’s brain injuries and statements were consistent with “Organic Amnestic Syndrome, one of the major symptoms of which is confabulation, the recitation of imaginary events to fill in gaps in memory.”[ Id. at 140.] One of the minor symptoms of that Syndrome was coughing, which, the court pointed out, happens to be consistent with many major diseases such as lung cancer; thus, the court did not accept that creative attack on a witness’s memory. Id. Until we understand brain function better, the credibility of memory, the source of most testimony, will require the subjective interpretation of the trier of fact.
The telling of the truth is diluted not only in the fading of memories, but also in the translation from one person of a certain background and language to someone having a different set of mannerisms and a different language. Justice Posner, in reviewing and reversing an immigration trial judge’s finding that a man from Cameroon lacked credibility as a witness, pointed out the inherent difficulty of having an American Judge weighing the credibility of a person from a foreign land based on cues and mannerisms that may mean one thing in America but may have a completely different meaning in Cameroon, with nuances and context that are lost on an observer who does not understand the Cameroon way.[Kadia v. Gonzales, 501 F.3d 817, 819 (7th Cir. 2007).] In criticizing the immigration judge’s finding of a lack of credibility, Justice Posner wrote: “…we noted in Iao v. Gonzales,[ 400 F.3d 530, 534 (7th Cir. 2005)] that immigration judges’ ‘insensitivity to the difficulty of basing a determination of credibility on the demeanor of a person from a culture remote from the American’ is a ‘disturbing feature’ of many immigration cases,’ and in Djouma v. Gonzales[ 429 F.3d 685, 687-88 (7th Cir. 2005).], that immigration judges often lack the ‘cultural competence’ to base credibility determinations on an immigrant’s demeanor.”[ Kadia v. Gonzales, 501 F.3d 817, 819 (7th Cir. 2007).]
Different cultures have different views of “telling” the truth. I recently read a fascinating article written by an American woman who spent time in a foreign country that I shall not name wherein the American woman finds herself constantly disappointed and perplexed by the stark difference between what the locals would tell her, and what her observations told her to be the truth.[ Claire Berlinski, Smile and Smile, Turkey’s Feel-good Foreign Policy, World Affairs, (July/August 2010).] She tells of one instance where she asked a man to send her an e-mail by noon on a certain day. She elicited multiple, firm promises that the information would be sent before noon, and that he understood the importance of this request. It involved an important business venture and would cause a number of serious problems if it were not sent. As the time came closer, he agreed at least three times that he would send it. Finally, noon came, and the e-mail wasn’t sent. “Why” she asked, “did you say you would send it if you didn’t mean it? If I’d known you weren’t going to do it, I would have known to plan things differently”. He answered angrily, “You should have known I didn’t mean it,” “How should I have known?” she asked, exasperated.. “Because,” he exploded, “I didn’t want to!”[ Id.]
After living in this foreign culture for a while, the American woman came to the realization that the “truth” was what people felt to be true, or what they wanted to be the truth. Just as the contents of a happy dream do not necessarily relate to observable facts in the waking world, the people in that foreign culture did not need a factual basis to tell their truths; the source of their speech was their hearts’ desire, not their eyes’ observations. The people in that foreign land could not understand how a “Westerner” would find their way of speaking to be strange, and certainly not immoral.
Thank heavens for the American lawyer that we live in a society where people don’t make factual declarations unless they have “seen it with their own two eyes”, as the saying here goes. You can see this “truth” about Americans for yourself on a very grand scale the next time the St. Louis Cardinals play the Cubs in Wrigley Field. Go to the game and wait for a line drive that flies straight along the foul line. If the ball was hit by a player in a blue uniform, you will hear a loud chorus of fans wearing blue clothing assisting the umpire with their unanimous telling of the truth: “FAIR BALL!”, a factual and true statement based on collective observation. At the same time, however, you will notice a smaller chorus of demented fans wearing red clothing standing up and yelling with intense, angry certainty: “FOUL”. Those people in the red clothes are from that foreign place where the people speak what they want to be the truth, without a basis in observable fact. Do not call them liars. Pity them. They are foreigners. They know not what they do.
Impeachment
Impeachment is one of the strongest tools in a lawyer’s arsenal.[ T. Mauet, Fundamentals of Trial Technique, 234 (1st. ed. 1980).] Once you have demonstrated to the jury that a person told a lie, the jury now has good reason to doubt everything that witness said, and you should win the case. Unfortunately, that is not always true. As a young lawyer, I once asked a judge who was hearing cases in divorce court (an area in which I do not practice) how he can figure out which person is lying when there are two diametrically opposed sides in every divorce. The wisdom of his answer still rings true today like the gong that went off in the background as he spoke: “They’re ALL lying!” he said to me. The lesson I learned that day is that you can prove that the opposing side’s witness is lying, and still lose your case in divorce. However, since impeachment is a handy tool in cases other than divorce, particularly in criminal trials where you do not have to put on any evidence at all and just attack the other side’s evidence, a lawyer should do his best to point out that the opposing witnesses are not speaking the truth.[ People v. Lee, 185 Ill.App.3d 420, 446 (1st Dist. 1989) (stating that impeachment by a prior inconsistent statement is the most effective means of cross examination).]
One way to highlight that a person is not telling the truth is simply by pointing out observations about the witness’s mannerisms that tip off that he is lying. There are entire books on the subject of detecting liars, and it is beyond the scope of this article to go in depth on ferreting out liars, but the following are a few tips from my experience in actual cases.
1. The selective memory liar. You will often find that some people, particularly former cub scouts, do not like to lie. They will replace the lie with, “I don’t remember.” If you have two witnesses, and one says, “I definitely saw the warning lights blinking before the train passed”, and the other witness says, “I don’t remember seeing the warning lights blinking before the train passed”, the one who says he “doesn’t remember” is probably the liar. In some cultures, people do not like saying “no” to a request, because it is rude. Instead, they say, “I’ll think about it.” In America, it is rude to lie; thus, some people say, “I don’t remember him telling me that would cost extra.” In U.S. v. Baker, the Court held that a witness’s “memory lapse was so selective as to be incredible.”[ 722 F.2d 343 (7th Cir. 1983) citing Vogel v. Percy, 691 F.2d 846 (7th Cir. 1982) quoting U.S. v. Shoupe, 548 F.2d 636, 643 (6th Cir. 1977).] The witness in U.S. v. Baker testified at trial that he remembered many very specific details about the crime, but claimed to not remember the defendant’s role in the crime.[ 722 F.2d 343 (7th Cir. 1983).] Because the witness’s memory was so incredibly selective, the court allowed the witness to be impeached with a prior inconsistent statement where he did remember witnessing the defendant’s role in the crime.[ Id.]
2. The uncooperative witness liar. I recently had a case where it took one hour for a witness to answer approximately ten questions. She did not understand the question. She answered a different question from the one I asked. She did not remember whether she signed a document, so I had to show her signature to her. It was as if we were speaking different languages. The judge sustained several objections of the witness being non-responsive. Then it was time for the opposing attorney to ask her questions. Even though this witness was not the opposing attorneys’ client, the questions and answers flowed smoothly and rapidly like a script from an infomercial. She even agreed with the attorney that she made a series of financial transactions, when in fact the documents sitting in front of her contradicted their agreed version of the truth. That lady was not believed by the court due to her demeanor, and justifiably so. In LaSalle v. 53-Ellis Currency Exchange[ 249 Ill.App. 3d 415 618 N.E. 2d 1103 (1st Dist. 1993).],the trial court was found to be justified in finding a witness to be incredible where the witness was evasive, uncooperative, and insisted in adding commentary favorable to his own case. In S.E.C. v. Michel[ 521 F.Supp.2d, 795 (N.D. Ill. 2007).], the trial court found that a witness who had selective memory and was evasive to have a lack of credibility. Credible witnesses answer the questions they are asked.
2. The uncooperative witness liar. I recently had a case where it took one hour for a witness to answer approximately ten questions. She did not understand the question. She answered a different question from the one I asked. She did not remember whether she signed a document, so I had to show her signature to her. It was as if we were speaking different languages. The judge sustained several objections of the witness being non-responsive. Then it was time for the opposing attorney to ask her questions. Even though this witness was not the opposing attorneys’ client, the questions and answers flowed smoothly and rapidly like a script from an infomercial. She even agreed with the attorney that she made a series of financial transactions, when in fact the documents sitting in front of her contradicted their agreed version of the truth. That lady was not believed by the court due to her demeanor, and justifiably so. In LaSalle v. 53-Ellis Currency Exchange[ 249 Ill.App. 3d 415 618 N.E. 2d 1103 (1st Dist. 1993).],the trial court was found to be justified in finding a witness to be incredible where the witness was evasive, uncooperative, and insisted in adding commentary favorable to his own case. In S.E.C. v. Michel[ 521 F.Supp.2d, 795 (N.D. Ill. 2007).], the trial court found that a witness who had selective memory and was evasive to have a lack of credibility. Credible witnesses answer the questions they are asked.
4. The “can’t make eye contact when I lie liar”. This one is self explanatory, and it can be combined with a whole range of ticks, head shakes like a “no” when a person is saying “yes”; head nods for “yes” when a person is saying “no”, and other involuntary movements that betray the truth when a lying liar is trying to lie. That is why it is crucial to the fact finding process where credibility is an issue to have a live witness.[ U.S. v. Mancillas, 183 F.3d 682, 710 (7th Cir. 1999) (“We do not second guess the Judge’s credibility determinations because he or she has had the best opportunity to observe the subject’s facial expressions, attitudes, tone of voice, eye contact, posture and body movements).] Evidence depositions are only appropriate for doctors’ testimony, because doctors never lie, unless they are testifying about baseball. Then you need their live testimony to look at the color of their clothes to see if they come from a foreign land.
What should we believe?
In a world of lies, poor memories, and false memory syndrome, what words are we to believe? The law gives us the answers. We should believe in things that are reliable. Things that are not reliable are spelled out in the Civil Practice Act and in the common law. Hearsay is not reliable, unless it falls under an exception that makes the hearsay reliable.[ People v. Quick, 308 Ill.App.3d 474, 720 N.E.2d 1137 (3d Dist. 1999).] Hearsay is not a person telling us the truth; hearsay is a person telling us the truth that someone else told. In other words, you may be hearing words from someone repeating the words from the blind man who only touched the tusk of the elephant.
The word of someone who has a bias or prejudice is not reliable, and you can bring in such evidence of bias or prejudice even if it is otherwise not relevant.[ People v. Lenard, 79 Ill.App.3d 1046, 1049-50, 398 N.E.2d 1054 (1st Dist. 1979). ] If you show that the witness has a closet full of red shirts, I would not rely on his opinion on the trajectory of a baseball. Evidence that is allowed under exceptions to hearsay are considered reliable, because in one way or another, the exceptions involve the removal of the element of bias or prejudice from the telling of the truth. Certified Copies of Government Documents, for example, are reliable. Government employees have no reason to make things up. They have no particular desires that color their words.
My favorite guides in the law for distinguishing truth from lies are the fraud presumptions. Sometimes the law presumes that a person’s desires overwhelm his ability to tell the truth. For example, if a person has a fiduciary duty, particularly to take care of an elderly person’s money, the law generally presumes that the person is not telling the truth when the fiduciary says “the old man wanted me take atrip to Europe with his money”.[ In Re Estate of DeJarnette, 286 Ill.App.3d 1082, 677 N.E.2d 1024 (4th Dist. 1997).] Chances are, it is the fiduciary who wanted to take the trip, and his truth fit his desires.. The statute of frauds is an obvious presumption. Any businessman who does not get his deal in writing will testify about what he wanted the deal to be, not what agreement he reached with another person. The Dead Man’s Act is a little less obvious of a presumption.[ Yetton v. Henderson, 190 Ill.App.3d 973, 546 N.E.2d 1000, 137 Ill.Dec. 887 (3rd Dist. 1989). ] Apparently before the Dead Man’s Act came into being, you were allowed to testify that grandma said she loved you the best and wanted you to have all her money after she died, even when such testimony was not even true. A few greedy heirs spoiled that trick for everyone else.
If you are on the receiving end of an attack on a witness’s credibility, sometimes your best defense is to point out that “falsus in uno, falsus in omnibus” (false in one thing, false in all things), has been completely discredited, including its rejection by Wigmore as being “primitive psychology”, and “an absolutely false maxim of life.”[ John H. Wigmore, A Students’ Textbook of the Law of Evidence 181 (1935), 3A Wigmore, Evidence in Trials at Common Law, §1008, p. 982 (James H. Chadbourn ed., rev. ed. 1970),] Wigmore’s rejection of this broad maxim of impeachment was cited by Justice Posner when he wrote: “Anyone who has ever tried a case or presided as a judge at a trial knows that witnesses are prone to fudge, to fumble, to misspeak, to misstate, to exaggerate. If any such pratfall warranted disbelieving a witness’s entire testimony, few trials would get all the way to judgment.”[ Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007).
]
CONCLUSION
Some people believe in magic and believe that dreams will come true if they can only speak the words of their desires in the right way. Their idea of truth lacks mathematical precision. If the heart can drive the truth, then it is just as important for the trial lawyer to reveal the witnesses’ desires as it is to elicit their words.
1 People v. Jefferson, 183 Ill.App. 3d 497, 539 N.E. 2d 211 (1st Dist. 1989) (dissent) citing Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972).
2 773 F. 2d 136 (7th Cir. 1985).
3 Id. at 140.
4 Kadia v. Gonzales, 501 F.3d 817, 819 (7th Cir. 2007).
5 400 F.3d 530, 534 (7th Cir. 2005)
6 429 F.3d 685, 687-88 (7th Cir. 2005).
7 Kadia v. Gonzales, 501 F.3d 817, 819 (7th Cir. 2007).
8 Claire Berlinski, Smile and Smile, Turkey’s Feel-good Foreign Policy, World Affairs, (July/August 2010).
9 Id.
10 T. Mauet, Fundamentals of Trial Technique, 234 (1st. ed. 1980).
11 People v. Lee, 185 Ill.App.3d 420, 446 (1st Dist. 1989) (stating that impeachment by a prior inconsistent statement is the most effective means of cross examination).
12 722 F.2d 343 (7th Cir. 1983) citing Vogel v. Percy, 691 F.2d 846 (7th Cir. 1982) quoting U.S. v. Shoupe, 548 F.2d 636, 643 (6th Cir. 1977).
13 722 F.2d 343 (7th Cir. 1983).
14 Id.
15 249 Ill.App. 3d 415 618 N.E. 2d 1103 (1st Dist. 1993).
16 521 F.Supp.2d, 795 (N.D. Ill. 2007).
17 U.S. v. Mancillas, 183 F.3d 682, 710 (7th Cir. 1999) (“We do not second guess the Judge’s credibility determinations because he or she has had the best opportunity to observe the subject’s facial expressions, attitudes, tone of voice, eye contact, posture and body movements).
18 People v. Quick, 308 Ill.App.3d 474, 720 N.E.2d 1137 (3d Dist. 1999).
19 People v. Lenard, 79 Ill.App.3d 1046, 1049-50, 398 N.E.2d 1054 (1st Dist. 1979).
20 In Re Estate of DeJarnette, 286 Ill.App.3d 1082, 677 N.E.2d 1024 (4th Dist. 1997).
21 Yetton v. Henderson, 190 Ill.App.3d 973, 546 N.E.2d 1000, 137 Ill.Dec. 887 (3rd Dist. 1989).
22 John H. Wigmore, A Students’ Textbook of the Law of Evidence 181 (1935), 3A Wigmore, Evidence in Trials at Common Law, §1008, p. 982 (James H. Chadbourn ed., rev. ed. 1970),
23 Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007).