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  • HOW TO KNOW WHICH WITNESS IS TELLING THE TRUTH

    This week’s question:
    I have been wondering about this for a long time. Just how do you as a lawyer know who is telling the truth? And for that matter, just how does a judge or a jury know who is telling the truth? It seems to me that this is often just impossible.
    /s/ Robert R.
    Almaden Valley

    Dear Robert:
    Sometimes it seems to me also that it is just about impossible to tell who is telling the truth. However, we need some rules to follow in the courtroom when that determination is needed. Otherwise, we might have chaos.
    One of the issues we look at is credibility. That is a relatively simple word but of crucial importance in a case in the courtroom. The California Evidence Code has a key section on credibility, §780.
    Here are some of the factors that a judge or jury might look at in determining credibility under that section:
    §780. Credibility Generally. Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
    (a) His demeanor while testifying and the manner in which he testifies.
    (b) The character of his testimony.
    (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
    (d) The extent of his opportunity to perceive any matter about which he testifies.
    (e) His character for honesty or veracity or their opposites.
    (f) The existence of nonexistence of a bias, interest, or other motive.
    (g) A statement previously made by him that is consistent with his testimony at the hearing.
    (h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
    (i) The existence or nonexistence of any fact testified to by him.
    (j) His attitude toward the action in which he testifies or toward the giving of testimony.
    (k) His admission of untruthfulness.
    It looks strange to see “his” used repeatedly, but of course all of the above rules apply to the female gender as well. The Evidence Code section quoted above was evidently drafted in 1965 before gender equality and neutrality were more common, and rightly so. Many changes in many statutes have occurred since then, some 50 years ago.
    You can see how the above rules can become very important in the courtroom. For example, in an auto accident case, you may have one witness who testifies under oath that the traffic light was green (such as the driver), and a second witness testify that it was red, maybe an independent witness, and they are both positive that he or she is correct and telling the truth.
    A jury may help solve the traffic light dilemma by considering one or more of the different factors set out in §780 (a) to (k) above. For example, the jury may look at the witness’s demeanor. They may ask themselves in the jury room whether that witness looks like they are telling the truth, whether the witness was in a location at the time where he or she could actually see the traffic light, and other factors.
    In a different kind of case where experts are involved, you would want to look at not only their credentials, but what factors are they relying upon to base their opinion and why. It is not unusual to have experts give conflicting testimony, but often cross-examination brings out interesting conclusions and reasoning.
    Of course, no system of justice is perfect, but our system of justice is the best on planet earth. In the traffic light issue discussed above, you can see the rules at play and how they help establish the truth.
    Almaden Times readers can read the “Credibility of Witnesses” section of the evidence code section by themselves. Just enter California Evidence Code Section 780 in your browser and it will be up on your monitor is about a heartbeat.
    There you go, Robert, some thoughts as to how you may determine who is telling the truth when two witnesses may be seeing things differently.
    /s/Donald J. DeVries
    Almaden Valley

    You can reach Mr. DeVries with your questions by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your name will not be used. No attorney-client relationship is created by these articles.

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