Should You Call a Witness a ‘Liar’?
I follow the Winning Trial Advocacy Tips blog, and recently there was a gem of a post titled Should You Call a Witness a ‘Liar’? It was particularly interesting because it combined two of my favorite topics: trial practice and Star Wars.
You’ll have to click the link to see the Star Wars connection (I can’t give it all away, now can I?), but here’s the takeaway idea for lawyers, and for those clients who are waiting for the ever-elusive “Perry Mason moment” during trial:
Just because the witness says something that you can prove is false, does that mean the witness is lying? Maybe, maybe not. But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the “L” word on your jury.
You don’t necessarily need the jurors to think the witness is lying, do you? All you really need is for them to disregard his testimony, right? It doesn’t matter why they disregard it, just so long as they do. So why take on an extra burden for yourself? And that’s why Obi Wan’s statement is so valuable. If you can come up with a comfortable way for them to disbelieve his testimony, that’s all you need to do.
What Obi Wan is saying is that you don’t need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken. If you can show the jurors that this witness’s “truth” is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness’s testimony, without being put in the uncomfortable position of having to call him a “liar.”
You probably already know that most jurors don’t like to think that witnesses are lying to them. Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to “tell the truth, the whole truth, and nothing but the truth,” but then look the jurors square in the eye and lie to them.
Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us. But jurors don’t think like that. Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them. (Yes, they even expect 10x convicted felons to tell the truth.) If you attack a witness’s testimony by calling him a liar, you’re going to need to prove that he lied. If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.