Credibility Proxies: Introduction
Hello All! I’m very happy to be joining you for some fall blogging, beginning with an intro to the subject of credibility proxies.
The need to judge credibility is both inevitable and central in our adversarial legal system. The fact-finder gets information largely through witness testimony elicited in court by advocates seeking either to bolster or undermine a particular narrative. Almost inevitably, that testimony conflicts, leaving the fact-finder in the position of lie detector.
It was not always so. In The Jury’s Rise As Lie Detector, 107 Yale L.J. 575 (1997), George Fisher offers an account of how we arrived at a status quo in which juries and judges arbitrate credibility conflicts. Importantly, jury trials were structured around the divine oath which avoided the impression that trial outcomes were simply the result of human judgments about credibility. As mechanisms designed to promote this myth eroded (by permitting sworn testimony by defense witnesses and later defendants, for example), we entered an era in which the power and necessity for assessing credibility rested more and more squarely with the jury, and the jury was increasingly shielded from the need to offer any explanation for its verdicts. Thus, as Fisher argues, the jury became a lie detector whose decisions were protected by a black box of inscrutability. This shroud around the jury, in turn, facilitated the perception that juries perform their task well.
Fisher and others argue that there is little reason to believe that juries are particularly adept at lie-detecting. Whether or not this is the case, the centrality of conflicting testimony in today’s trials certainly puts enormous pressure on the impeachment and character evidence rules. If a case goes to trial, a jury faced with testimony from a witness with no disclosed criminal record against testimony from a witness with a felony conviction could be forgiven for choosing to believe the witness with the apparently unblemished record. If the witness with the felony conviction is the defendant, the jury may not only be tempted to discredit him or her but also to draw the inference that the defendant has a propensity to commit crimes and therefore likely committed the crime of the moment. For this reason, unknown numbers of cases that would rest on testimony from witnesses encumbered with prior convictions or other unsavory and admissible prior acts likely end in plea bargains or settlements.
There are many points along the road to a credibility decision by a fact-finder where we could conceivably intervene. We could return to trial by ordeal or become less adversarial and more inquisitive in the format of our trials, for example. Many such solutions seem neither practical nor likely. One area that I believe does have room for adjustment is the admissibility of evidence relating to credibility and character. These rules have a major influence on fact-finders’ credibility decisions. Indeed, the system functions largely by creating proxies for credibility, such as a felony conviction or a reputation for dishonesty. I am working on a project that seeks to identify a range of credibility proxies and to interrogate whether they are likely to assist the fact-finder in detecting lies (spoiler alert, I think the answer is very often that they are not). In the next several posts, I will offer some interesting examples from the past decade of courts confronting a range of offered credibility proxies. I’d love to hear from you about your impressions of the efficacy of these proxies and any others you have come across!
-JSK