Challenging Witnesses at Trial

Stephen Howard — Stone River Law

Real People. Real Solutions.

Challenging Witnesses at Trial

Sixth Amendment Constitutional Rights to Confront and Cross-Examine Witnesses

The Sixth Amendment to the United States Constitution guarantees important rights relating to witness reliability. A person accused of a crime has the right to confront the witnesses testifying against him/her and, by extension, the right to have those witnesses cross-examined. The Sixth Amendment’s requirements are extended to the states by action of the Fourteenth Amendment. Utah’s own State Constitution similarly guarantees the right of confrontation.

The origins of the rights of confrontation and cross-examination in English common law and Roman law are beyond the scope of this article. Both of these rights are critical in facilitating a determination by a jury of the reliability of information and testimony presented as evidence in court.

Utah Jury Instructions on Witness Believability

Standard Utah jury instructions focus on questions of “believability” and the “truthfulness” of a witness. The Model Utah Jury Instruction (MUJI 2d), commonly given by judges in Utah criminal cases, specifically instruct jurors, “In deciding this case you will need to decide how believable each witness was. . . . [and] whether a witness testified truthfully. . . .” MUJI instructions further focus jurors on whether a witness had “any reason to lie or slant the[ir] testimony.”

Honesty and believability involve concepts that are related yet different. A witness may be honest, yet wrong. A witness may appear believable, yet be lying.

The Honest Witness

Even if we assume that a witness is making every effort to be honest and accurate in the testimony given at trial, there are several fundamental matters that can contribute to the unreliability of a witness’ testimony. Some of these are discussed below.

Opportunity to Observe

Ability to Recall

Unconscious Bias

In deciding this case you will need to decide how believable each witness was. Use your judgment and common sense. Let me suggest a few things to think about as you weigh each witness’s testimony:

  • How good was the witness’s opportunity to see, hear, or otherwise observe what the witness testified about?
  • Does the witness have something to gain or lose from this case?
  • Does the witness have any connection to the people involved in this case?
  • Does the witness have any reason to lie or slant the testimony?
  • Was the witness’s testimony consistent over time? If not, is there a good reason for the inconsistency? If the witness was inconsistent, was it about something important or unimportant?
  • How believable was the witness’s testimony in light of other evidence presented at trial?
  • How believable was the witness’s testimony in light of human experience?
  • Was there anything about the way the witness testified that made the testimony more or less believable?

In deciding whether or not to believe a witness, you may also consider anything else you think is important.

You do not have to believe everything that a witness said. You may believe part and disbelieve the rest. On the other hand, if you are convinced that a witness lied, you may disbelieve anything the witness said. In other words, you may believe all, part, or none of a witness’s testimony. You may believe many witnesses against one or one witness against many.

In deciding whether a witness testified truthfully, remember that no one’s memory is perfect. Anyone can make an honest mistake. Honest people may remember the same event differently.