One theme of this blog is that lawyers don't think like jurors. A new study gives an example: lawyers' unfounded love of what we call the "prior inconsistent statement." If today on the witness stand Mr. Smith says he was in Montreal on the day of the critical meeting, but in his deposition he said he was here in Milwaukee, it's enough to make a lawyer puff with glee.
The Holy Grail
The prior inconsistent statement is the Holy Grail of witness impeachment, the gold nugget lawyers search for. We spent hours back in trial advocacy class learning how to use it well. First you tie down the in-court statement until it looks like Gulliver tethered by Lilliputian ropes, with no chance of escape. ("You're sure? You're really sure? No chance of mistake?") Then you spend some time on the gravity and certainty of the deposition. ("You were under oath? Just like today? You had a chance to correct your answers? And you didn't?") Then you slap out the inconsistency and try to keep yourself from bellowing out something like "WERE YOU LYING THEN OR ARE YOU LYING NOW?"
Finally, you ask the judge to give the jury a "falsus in uno" instruction, one of the few bits of Latin lawyers still know: falsus in uno, falsus in omnibus, or if the jurors think a witness told one lie, they can choose to disregard her entire testimony. The instruction isn't given often, but a prior inconsistent statement helps convince the judge it's justified. If you get one, you make it the centerpiece of your whole closing argument.
To jurors, it's not that simple
But are jurors really going to throw out a witness's testimony because of one inconsistency, or even one lie? Think about it. Do you have a co-worker who has lied to you but with whom you still manage to work well? A family member who has lied to you whom you still love? Perhaps you yourself might have told a lie once, long ago? For most of us, the idea of falsus in uno is too simple to be useful in real life.
Jurors are often forgiving and practical when a witness lies. That's the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in "over a dozen states." Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI's For the Defense magazine. (Update: the full text of the For The Defense article is at Jones Day's web site.)
Highlights from the post, which should be read in full:
- "[J]urors go into a trial with a generally positive attitude toward witnesses."
- A majority of jurors do tend to believe an inconsistency reveals a lie rather than a mistake, but . . .
- "Only 20% of the jurors said that an inconsistency would lead them to disregard everything the witness said."
- Jurors were receptive to the idea that an inconsistency was caused by stress rather than dishonesty.
- Jurors vary widely in the way they interpret prior inconsistent statements.
