By Dr. Ken Broda Bahm:
If your opposing counsel has a flair for the dramatic, then at some point in the deposition or cross-examination, you might get to a question like, “So, if my witness says that didn’t happen, then you’d say she is lying, right?” What the lawyer is hoping for in asking a question like that is that you’ll back-track, or hesitate, or in some other way try to evade the accusation. Playing on our instinct for civility in the formal setting of testimony, the lawyer is trying for a cheap way to soften or introduce doubt about your own testimony. And in some cases — where you’re sure — the correct answer might just be “Yes, she is.” That is, if there is a direct conflict in testimony, then it is helpful for the finders of fact to see that you are firm on the point that you’re the one telling the truth, and the party on the other side is the one who is not.
Often it helps to be clear, and if it’s a lie, call it out. There’s also recent social science to back this up. In an article entitled, “‘The witness is lying!’: the impact of a defendant countering a jailhouse informant’s testimony,” a team of researchers from Indiana, Kentucky and Alabama (Wetmore et al., 2022) report on a study showing that it helps for a witness to explicitly counter a lie from the other side. Mock jurors read a summary in a murder trial involving a jailhouse informant testifying against the accused. Researchers varied the conditions of the trial descriptions so that the accused either explicitly countered the informant’s testimony or asserted their own innocence but without explicitly countering that testimony. In effect, they contrasted the implicit counter (emphasizing the “I’m innocent” but without saying the informant is lying), versus the explicit counter (“I’m innocent, and the informant is lying.”) As you might expect, the explicit counter works better and leads to fewer convictions. The researchers theorize that, in order to feel consistent about a not-guilty verdict, the mock jurors need to see the informant’s testimony in a negative light, and the explicit as opposed to implicit counter helps them do that. In this post, I’ll share a few recommendations on calling out the lie when needed.
Think About How You’ll Say It
Is it a lie, or is it not supported, or is it at odds with other known facts, or is it just not your perception? Each of those carries a different meaning. Journalists covering politics have had that problem recently, with many trying to find a way out of the “two-sides” mindset that can end up elevating lies to be on par with facts. In response to this current era, some have come around to the view that the simplest way to say something isn’t true is to just say it isn’t true. That in many cases will be a good idea for the witness as well. It depends on the facts and your knowledge of them, but when you know you need to counter something that you believe is false, think about how you’ll say that.
Be Precise
Target exactly what you think is inaccurate. It is rarely the case that everything the other side is saying is a lie, so be clear about your parameters on what is and isn’t true. It might even build your own credibility to concede some aspects of truth where you see it, even while focusing an important falsehood. In the case of an opposing expert witness, for example, they can be correct on at least 90 percent of it and still be wrong in the central conclusion. So “Here is the one error,” is going to be more credible for you than “It’s all lies.”
Separate the Description from the Emotion
From the jury’s perspective, they want to know who to believe and what actually happened, but they don’t always appreciate the drama. For that reason, it is generally the best practice to keep it descriptive — just tell us what is false, we don’t usually need to know how mad you are that it is false. There is a difference between, “based on what I know, that isn’t accurate” and “That’s a god-damned lie!!!” Yes, on occasion jurors will understand or even expect a bit of emotion, but more often than not, calm and clear testimony will be more credible to them than testimony that they think might be tainted or motivated by emotions.
Focus on the Foundation
How you know it’s a lie is more important than the accusation itself. Remember that for the jury, it can be a he said/she said situation, and they don’t necessarily have a built-in reason to trust either party. So the essential part of your answer is the part that justifies to the listeners why they should believe you and not the other side. So think about ways to frame it, like:
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- It isn’t just false, it also doesn’t make sense…
- That statement is at odds with all of the available evidence…
- None of the witnesses agree with her on that point…
It is critical to remember that jurors can’t get inside your head, and know that you’re the one telling the truth. It is also within their prerogative to take two inconsistent statements and just discard both of them. So ultimately, getting them to believe you is about being the party that isn’t just honest, but is also clear, confident, consistent, and supported.
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Other Posts on Dishonesty:
- Address the Most Dangerous Feature of Your Product: Dishonesty
- The Punishment Profile: Know the Situational Triggers
- Rehabilitate Your Lying Witness