Assessing Credibility

Assessing Credibility is the substance of most trials. Credibility = Honesty + Reliability

Issues of credibility and reliability tend to be blended into a single analysis, they should not. Truthfulness on the one hand, on the other, powers of observation, intelligence, opportunities of knowledge, judgment, memory – the trustworthiness of their testimony.

Demeanour Cannot be the sole focus of the TOF. It may give hints about who is trying to be truthful, but little to nothing about accuracy. The most dangerous witness is the honest, yet mistaken one. We believe them because of their conviction or emotion, forgetting that they may not have been able to make, retain, or properly recall the observations.

Point There is a distinction to be made between veracity and truthfulness, and the ability of the witness to relate evidence with accuracy – ie. produce reliable evidence.

While an incredible witness will not give reliable evidence, a credible witness can give very unreliable evidence. Both accuracy and truthfulness must be a focus of the TOF.

The accuracy of a witness’ testimony involves considerations of the witness’ ability to accurately observe, recall and recount the events in question.

Child Witness Corroboration requirements removed from criminal law. Does not relieve the TOF from being told to be careful with such evidence, and consider its frailties, and the danger of convicting without corroboration. A jury instruction may be required. There are no automatic assumptions of unreliability with respect to age or nature of the complaint. There must be an evidential basis for it to be reasonable to believe the evidence is unreliable.

Warning It is a matter of common sense that to convict on the unconfirmed and unsworn evidence of a child witness is fraught with danger, and you must use your common sense and all of the evidence before you.

B.(G.) While children may not be able to recount precise details and communicate the where and the when of an event with exactitude, this does not mean that they have misperceived what happened to them and who did it. … the credibility of every witness who comes before the court must be carefully assessed, but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

R.(W.) Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed in reference to criteria appropriate to their mental development, understanding, and ability to communicate. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regards to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

Eyewitness Evidence Deceptive Credibility, seemingly honest and sincere. The evidence has emotional and dramatic effect.

Factors - Observation Ability to observe, visual, aural. Internal characteristics of witness (stressed, intoxicated?). External conditions: lighting, distance, obstructions etc.

Factors – Information Retention and Processing Mental abilities Interference of Media Coverage Interference of Discussions with Other Witnesses

Retention: how long has it been since the event? Did the witness make a statement at the time of the event? Any significant discrepancies to their testimony?

Factors: Recall Method of recall Reliance on notes?

Credibility: Honesty Character Dishonesty Record Fabrication Collusion Financial or other benefit

Bias demeanour

Demeanour Can be misleading Is it nervousness? Cultural difference?

Prior Statements Certainly a more objective way to determine credibility is consistency (or lack thereof) in prior statements The honest but unreliable witness may appear credible, but the proof is in their prior statements.

TOL/TOF It is clear that credibility/reliability problems are for the TOF. The role of the TOL is to draw attention to the problems in the evidence before them, and to warn of the dangers of convicting, without more.

Expert Evidence on Reliability/Credibility: Marquard Credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic, and an intuitive sense of the matter. Credibility is a matter within the competence of laypeople. Ordinary persons draw conclusions as to whether someone is lying or telling the truth on a daily basis … Credibility is a notoriously difficult problem, and the expert’s opinion may be all to readily accepted by a frustrated jury as a convenient basis to resolve its difficulties. All of these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of a witness.