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Welcome to YouCounsel.

On a daily basis in our courts, judges have to decide whether to believe a particular witness or not.  How do they make that decision? What magical tools do they have at their disposal? What kind of principles do they keep in mind in deciding the credibility of a witness? This is the topic of today’s lecture.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Now this witness credibility issue is most pronounced in he said/she said cases—in cases where there are 2 witnesses who have conflicting oral evidence about an incident.  The judges have to decide which witness is telling the truth and which witness is not to be believed.  In cases where there is minimal or no documentary evidence, this issue is common—where there is conflicting documentary evidence or conflicting viva voce (oral evidence) as I said between 2 witnesses both have witnessed the same incident but have different evidence with respect to what occurred in that incident.  Then there may be minimal or conflicting extraneous evidence there may not be any third party or other witnesses or may not be any other documentary evidence that sheds light on the issue that is being decided by the judge.

How do the judges make that decision? We have a common misconception—for a lot of people who come to the court and who have no legal experience—that the judges make decisions about credibility of a witness based on how sincere that witness appears to be. This appearance of sincerity is a broad term that is used and it has many manifestations.  For example, in a case where there are emotional elements—where there are issues, for example, of sexual assault or things of that nature, if the witness is crying when describing that particular instance does that make the witness more believable? Does a witness sound more educated when he or she is rendering testimony?  Is the witness using a language that resonates more with the judge? How is the witness dressed? Is the witness dressed in professional clothes? What kind of color is their attire that they’re wearing? I mean these are things that we notice commonly in our everyday life and especially we notice these kind of things in political debates that happen during the election time.  There is a lot of thought that goes into how a candidate is going to perform in an election debate; what kind of clothes they’re wearing; what kind of suit they’re wearing; what is the color of their suit; what is the color of their tie; what kind of haircut they need to have and how do they come across?

For example, during Hillary Clinton’s campaign one of the common criticisms was that she came across as very cold. What has the coldness of a person to do with anything—that person’s credibility? But, we trust people who are more warm; we connect with people who come across as a bit more warm.  These are the things on a daily basis how a lot of us make decisions about credibility of a person who is before us. 

When we come to court we are worried—a lot of witnesses are worried that a person / a witness who is a better performer in court than them will be accepted as more credible.  That is a common misconception.  That is obviously a concern for people who believe that they do not come across as very well educated, very eloquent witnesses.  But that is not how the courts decide on the credibility of witnesses or at least that is how they try not to decide on the credibility of witnesses. I do believe that judges have their unconscious biases that play into the decision-making and with respect to the credibility of witnesses too. 

But the courts have made significant efforts in laying out principles of determining credibility assessments and they follow those principles or at least try to follow those principles. One of the factors the court will consider is what kind of opportunities for knowledge of that incident that this person / this witness is describing had with respect to that incident. Was the person present at that incident? How far was that person? What was the concentration level? Was the person involved in that incident or was it a bystander? What was the bystander doing? What were the opportunities for knowledge of that incident that the witness is describing? What were the powers of observation? Again, this is relating to the opportunities of knowledge.  If you were watching television and something happened outside your window, what was your ability to go? Was it dark in the night? Where was it? Outside? Was it day or night? Were you able to see clearly? Were there street lights or not? – things like that (power of observation of the witness).

Then witnesses make a judgment about a lot of facts that they that they see—what were the kind of judgments that the witness made? What was the memory? What is the extent of memory of that witness of that incident?  Relating to that is the witnesses ability to describe clearly what was seen or heard.  It has a value with respect to credibility. One of the major things that you want to focus on with respect to witness’ evidence is inconsistencies in the witness’ evidence and weaknesses in the witness’ evidence.  That is one thing that we as lawyers focus tremendously on, especially, if we are trying to prove that a witness is not credible. 

What are some of the internal inconsistencies? For example, if the witness was describing an incident and earlier on in his or her testimony the witness said that there were 3 other people who were also present in that situation and then later on at some other point the witness says that there were 5 other witnesses who were present—then this shows an internal inconsistency in the recollection of the witness. You can expose that depending upon the circumstances of the case. Another inconsistency that can be shown is inconsistency with prior statements.  For example, regarding an accident the witness did provide a statement to the police at the time of the accident.  Now when the witness is testifying at trial the testimony that he or she is providing is inconsistent with what was said to the police at the time of the accident.  Showing that there were prior inconsistent statements, you can show that the witness is not credible. Inconsistency with other witnesses—you juxtapose the witnesses evidence with respect to other evidence and figure out what kind of inconsistency there may be or inconsistency with some of the documents that are in evidence and how do you assess the witness’ credibility with respect to those inconsistencies. It is the hallmark of a good lawyer—who exposes inconsistency and weaknesses in witnesses evidence to prove to the court or to show to the court that the witness is not credible.

This is done in a number of ways. One of the common things that lawyers do all the time at examinations for discovery / at a trial is to approach one specific fact from different angles at different times of their examination. They’re bringing the same facts again and again in different ways to see if the witness provides some testimony that is inconsistent with whatever the witness has said before.  There are so many ways to do that.  Inconsistency is one of the key things that lawyers at least try to find in a witness’s evidence and the judges are cautious that if there is inconsistency and weakness in the witness’s evidence, then it will be hard for a judge to find that witness was credible.

Having said that, another major thing that the court will consider is whether the overall evidence of that witness is plausible.  This is the language used in a very famous case which is the seminal case on the credibility of witnesses Farnya v. Chorny.  The court said, “…(is the witness’s testimony) in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”  What it means is: does the witness’s evidence make sense when you consider the entire story – does it make sense?  If it doesn’t make sense then it’s hard for the judge to believe that witness and if it does then it’s more plausible.  In all of this the demeanor of the witness, the sincerity and the use of the language is considered but with caution. It is not something that the judge will take right away that the person comes across as sincere and honest and therefore to believe that person.  No.  It is considered but with some caution. Then also the motives of that witness with respect to fabricating evidence are also concerned.

When a judge has to decide to believe a witness or not, how much does a judge need to believe a witness?  It’s not all or nothing kind of situation.  The court may believe none of the witness’s evidence or part of his or her evidence or all of the witness’s evidence.  It is possible for the court to say I believe this part of the witness’s testimony but I do not believe that part of the witness’s testimony.  It’s not an all or nothing proposition. When the court accepts the evidence it may assign different weight to different parts of the evidence.  When the court says I believe that this person is telling the truth, the evidence is credible, that does not mean that the court has to then make a finding of fact on the basis of that witness’s evidence alone. A court may say we’re going to consider this as something that supports this fact but we’re going to look at some other facts too. They may assign a different weight to the testimony or to different parts of the testimony. For one part of the evidence they may say we believe it 100 percent we’re going to rule that this is how the fact was as described by this witness or they may say that we’re going to believe it and we’re going to assign a lower weight/ less weight to this part of the evidence.  That is open to the court with respect to the evidence.

What is the takeaway? You need to always remember that unreliable witnesses can seriously, seriously undermine the success of the case.  It’s very important that the witnesses that are presented are credible and they provide evidence that is credible to the case. I would recommend that you read these 2 cases: (1) Farnya v. Chorny (1951).  This is the leading case with respect to Credibility Assessment of witness.  It is a treat to read this case. I think you can read it over and over again to understand it. This is relied on by courts all the time. Read that case. (2) Another one which is helpful is Frame v. Rai (2012)—which actually expands upon some of the principles that are in Farnya v. Chorny and it will be helpful.

Thank-you for watching.