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

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 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? In deciding upon the credibility of a witness

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 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. If disaster strikes on cross-exam:

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 , x