The Seeds of Credibility Destruction
Give me six hours to chop down a tree and
I will spend the first four sharpening the axe.
Figuring out the truth can be tricky. In two earlier posts, (here and here) I discussed the limits of using demeanour, eye contact and other physical cues as a way to determine whether a witness is lying. I suggested giving inconsistent evidence and “protesting too much” were markers (although not definitive indicators) of dishonest testimony. I also pointed out adjudicators frequently must compare the evidence given by the witness against the known or proven facts to see whether what the witness is saying makes sense in that context. This latter point is what I want to look at a little more closely; how do you do that?
So, we are trying to get the real story and the story can be told in different ways. How do we get there? How do we know what is actually true? A big part is consistency and keeping the story straight. The old World Wrestling Federation champion Rowdy Roddy Piper used to say, “Just when you think you’ve got all the answers, I change the questions.” And that is where skillful counsel can bring out the inconsistencies of a story. Making a witness give inconsistent testimony depends largely on the skill of the person asking the questions and, to be blunt, on the witness’ skill in giving testimony and lying.
However, one thing is clear: a witness can only give inconsistent evidence if he/she has to answer questions about the same subject more than once. And that is where you change the questions. If you repeat the same questions chances are, you will get the same answers. Instead make the witness give evidence about the same point more than once by asking questions from a different perspective. This is not an easy skill – it takes practice to master.
Getting the witness to reveal inconsistencies in a story is not all about skill. In fact, a big part of it is preparation and planning. The planning is crucial.
First, you have to know in advance what your witnesses are likely to say. If you have more than one witness, are their stories consistent with each other? If not, figure out why not. Don’t wait for those inconsistencies to come out at the hearing. You also need to know what your witnesses will say about the anticipated stories from the other side’s witnesses. Ask them and your advisers, why the other side’s version of events does not make sense and why yours does. There really is no substitute for good preparation. You don’t want there to be doubt about what your witness is saying because of inconsistencies.
Second, you need to assemble all of the documents (including electronic messages, pictures etc.) which support your version and those that do not. As an adjudicator, when I consider credibility, I am building a puzzle in my mind. The corner and edge pieces of the puzzle are all of the facts which I know to be true. These include such mundane things as the grievor’s job, her shift, etc. The interior pieces of the puzzle are the facts which one side or the other has proven. Often it is the documents which are the pieces of the puzzle that bring clarity to the picture. That is because, unless the document is a forgery (and if it is, then that is big trouble for the side relying on it) documents suggest what the parties thought was happening at the time. Or, in the case of pictures, what was actually happening at the time. Established facts and reliable documents are the pieces of the puzzle around which the oral evidence given by witnesses must fit.
Third, you need to know in advance the facts you need to prove and how they can be proved. Keep in mind that this does not need to be done through your own witnesses and evidence. In fact, it is often better if you can establish the facts you need through the other side’s witnesses because it is more likely to be believed. In addition, it has other uses: in the cross examination of a witness, for instance, you can bring out facts that will assist in the cross examination of another witness. This type of evidence is often more powerful as a tool to cross than if your own witness gave it. You can imagine asking a witness in cross examination: “but your own coworker said “the opposite…”.
Let us take an example. A meeting took place and we are trying to find out what happened. You cross examine the other side’s witness, John. John’s testimony regarding an issue may be more trustworthy to the adjudicator than the evidence your own witnesses gives on the same issue. It is also firm ground to stand on in the cross examination of another witness, Sharon. Cross examining different witnesses about the same subject is another way of creating inconsistencies and making your version of the facts look more reliable
Preparation is the key to constructing a set of established facts through evidence against which the testimony of witnesses can be compared. The more straightforward your case is, the more powerful it is and the greater the chances are your side will win.