May 3, 2012

Test the Credibility of Your Turncoat Witness

By Dr. Ken Broda-Bahm: 

Judas Edited

Not all witnesses are saints. While this is especially well-known in the realm of criminal prosecution, it applies in civil trials as well. A witness may carry some unsavory background, or the context may simply be such that their testimony – truthful or not – feels like betrayal. The same factors that apply to the stereotypical “jailhouse snitch” can also apply in a variety of situations: a whistleblower, qui tam relator, or expert witness testifying against a member of the same profession. A doctor criticizing another doctor’s work, for example, may be viewed as breaching the basic human tenet of loyalty, and for that reason, the witness may be distrusted. 

One current example of a perceived “Judas Witness” can be found in Andrew Young, the government’s star in the ongoing trial of John Edwards in North Carolina. The close confidant and all-around personal assistant for the Senator and presidential candidate was, at one time, so loyal to Edwards that he was willing to do not just the handyman work and to buy Edwards’ Christmas presents for his children, but to hide the candidate’s affair with a documentary filmmaker during the campaign. So great was Young’s loyalty that he even agreed to claim to be the father of John Edwards’ love child in a failed attempt to quell media speculation. Now this same self-sacrificing lieutenant is key to the Justice Department’s claim that Edwards violated campaign finance laws by using donor funds to keep the mistress out of the spotlight. While some of the criticism of Young as a witness has focused on his mumbling inconsistencies and his admitted self-interest (he apparently diverted some of the funds to help finance his dream home), part of the response we may see from the jury could also stem from the factor of disloyalty. Applying a recent analysis of loyalty in a legal context (Rich, 2010), this post takes a look at ways to bolster the credibility of the “turncoat” witness. 

Witness Loyalty

While the unique situation of the criminal informant who turns state’s evidence in order to bring his colleagues to justice is well-known, there isn’t much written about the problem, especially as it relates to the more general question of witness credibility. One manuscript I stumbled upon, “Lessons of Disloyalty in the World of Criminal Informants,” written by Michael L. Rich, takes a broad and philosophically informed look at the betrayal factor, including recent “Stop Snitching” movements in major cities. Starting with the observation that “society roundly condemns disloyalty as immoral,” the law professor digs deeper into a number of scenarios and illustrates that we tend to disapprove of disloyalty even when the actor is not himself guilty of wrongdoing (e.g., the innocent citizen reporting on her neighbors), and even when the actor is serving a greater good (e.g., preventing a crime by reporting on a family member). When we see an action as worthwhile (e.g., the case of an ethical whistleblower), it is generally not because the disloyal act is seen as good in itself, it is because the benefits of the act appear to outweigh the harms of disloyalty. Rather than just looking at outcomes and viewing the quality of loyalty as morally neutral, we tend to view disloyalty as a negative that may or may not be outweighed in a given case. 

In the case of Andrew Young, it may be that his testimony simply leads jurors and other listeners into a cognitive dissonance: “If you respected this man enough to have done all of this for him, even after he trampled on you and lied to you, then why are you turning on him now?” The image of the candidate’s doormat is simply inconsistent with the image of the candidate’s accuser. And if there isn’t a ready motive available to explain that transition, then other motives (personal gain, attention, self-preservation…) will fill in the void. 

The narrative told in both Young’s book and the prosecutor’s direct examination is one of a loss of faith: Young idolized the politician, saw him as a charismatic John F. Kennedy figure, and desperately believed that he would be the president. Then as Edwards and those surrounding him exploited that faith and piled on humiliation upon humiliation – ending with the crowning insult of the induced claim to be the “baby daddy” to Edwards’ mistress – faith turned to doubt and idealism turned to self-interest. Young’s turn is caused by Edwards’ own betrayal and fall from grace. 

Bolster the Apparently Disloyal Witness

The important factor in the Andrew Young story is that, whether successful or not, there is a story that explains and reframes this disloyalty. That is an important calculation for any witness who could be viewed as breaking faith with a party or group. I’ll end with three recommendations: 

1. Add “Loyalty” To Your Credibility Calculations. We are used to thinking about the common factors when assessing a witness’s credibility: What do they stand to gain? How well do they communicate? How competent are they to relate the substance of their testimony? Before those concerns, however, is the basic element of credibility, which is character: What kind of person are they? As the philosopher George P. Fletcher notes, “Some of the strongest moral epithets in the English language are reserved for the weak who cannot meet the threshold of loyalty: They commit adultery, betrayal, treason.” We use words like “snitch,” “rat,” or “squeal” to describe disloyal testimony. It isn’t always a net negative, but it is always a consideration. 

2. Identify a Transcendent Loyalty. Rather than a matter of absent loyalty, it is better to see it as a revised or retargeted loyalty. Jurors might ask the question, “If the witness is disloyal to the target of his testimony, then what is he loyal to?” A gang member, for example, may have a loyalty to his mates, but may have a stronger loyalty to the idea of not killing civilians outside of the gangs. The same notion of a higher loyalty applies in other contexts as well. A whistle-blower, for example, is loyal to the company, but owes a greater loyalty to the customer, or the environment, or the rule of law. 

3. Run a Witness Credibility Test. A good way to discover and fix the credibility problems a witness may have is to run a test. When clients think of a mock trial or a focus group, they often think of testing the entire case, or at least the core of the case. However, the true unknown is often a lot more specific than that, and it frequently comes down to a witness: Will jurors believe her or not? In a case like that, a streamlined and economical research project just centers on that question. Give the mock jurors a brief overview of the case, and then give them an extended taste of the witness’s testimony, focusing most on the trouble spots. You’ll get good feedback on whether the witness is believable or not, and more importantly, on the factors and themes that serve to increase or decrease that believability. 

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Other Posts on Witness Credibility: 

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Michael L. Rich. 2010. “Lessons of Disloyalty in the World of Criminal Informants” The Selected Works of Michael L Rich. Available at: http://works.bepress.com/michael_rich/1

Photo Credit: Wikispaces, Judas Iscariot. 

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