REAL PEOPLE.

REAL SOLUTIONS.


Challenging Witnesses at Trial

Stephen Howard — Attorney at Law

Sixth Amendment Right 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 Amendmentโ€™s requirements are extended to the states by action of the Fourteenth Amendment. Utahโ€™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 Reliability

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

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 witnessโ€™ testimony. Some of these are discussed below.

  • Opportunity to Observe
  • Ability to Recall
  • Unconscious Bias

Jury Instructions on Witness Credibility & Reliability

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 witnessโ€™s testimony:

  • How good was the witnessโ€™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 witnessโ€™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 witnessโ€™s testimony in light of other evidence presented at trial?
  • How believable was the witnessโ€™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 witnessโ€™s testimony. You may believe many witnesses against one or one witness against many.

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