The title of this article—with an exclamation point—says it all. Witnesses are often considered to be the secret weapon and the best evidence to present in Court. However, the reality is quite different than most of us believe. Witnesses are limited by a number of factors including:
CREDIBILITY OF THE WITNESS: The credibility of a witness is determined by a number of factors, namely, what the witness knows, how the witness knows the information, the witness’s past history of behavior, the witness’s relationship to the parties in the case and the way they deliver their testimony. Credibility is addressed by the Rules of Evidence and its analysis is applied in hundreds of thousands of courts every day. Credibility is based on facts presented, law interpreted and the observations of the Judge. This article briefly touches upon a few of the many considerations when determining witnesses—and how the a Court’s interpretation affect those determinations. It is not meant as an instructive treatise by any means, but as an introduction to an issue not regularly encountered by non-attorneys. The information contained, here, does not constitute a legal opinion nor is it legal advice.
A hesitant witness who “forgets” facts or is unable to clarify or explain an issue may appear dishonest to a Court. The witness may be reluctant to testify due to a fear of retaliation or they may simply not have a ready answer to a question. Cross examination of a witness often unravels the finely tuned statements that were elicited on direct examination, causing the witness to contradict themselves or become confused.
A witness who is an advocate for a party—such as a close family member or significant other in a divorce or custody case—may be perceived as too close and too enthusiastic to champion a cause—thereby diluting their message. Courts often hear from grandparents during a custody case where the grandparent recites what a great father or mother their own child has become. Glowing descriptions of wonderful times spent observing great parenting are easily discarded in the face of unfavorable facts. If a case is subject to such unfavorable facts, the time is better used confronting those facts—rather than wasted on superfluous opinions of perfection. Disparaging the other parent in a custody case may seem like a good strategy—especially for a witness who has been subjected to the bad behavior of the other parent. However, disparagement often back-fires and shows the Court that
A witness who has a criminal history or a history of drug abuse is often discredited in the Family Court. A felony conviction can be used to impeach a witness and even a misdemeanor arrest can be material when it pertains to an issue before the Court. Behavior of a witness that tends to show instability (frequent job changes/frequent moving), substance abuse—including “legal” marijuana use or a “partying” lifestyle can all be used against a witness if they deny this problem—and the opposing party can show it is true—or if they admit the behavior and it shows a lifestyle not commensurate with the Court’s idea of good parenting.
What a witness knows and how they know it is crucial to the credibility of their testimony. If a witness did not actually observe the act they are describing—they were only told about it—the hearsay evidence rules will exclude the testimony. Hearsay evidence is not credible by law, since it is simply the retelling of what someone told a witness. A witness, in most circumstances, must have been present to experience the subject of their testimony. For example, if a family member arrives at the door at midnight claiming they were abused by their spouse, the witness could only testify to the demeanor of the family member, the cuts, bruises, the statements made (as long as that person is a party to the case the statements will not be hearsay). However, that witness could not testify to WHO caused the injuries or when or how—since they were not present and didn’t see that part of the incident.