Wednesday, September 11, 2013


I recently posted a description of a long-ago murder case where we had an issue with moonlight and almanacs. My adversary in that trial and I remembered the incident very differently. For a full account of our differing recollections, go to my August 28, 2013 post. In that post I gave the account of both our recollections and said I would go back, read the trial transcript, and post a report on who was right. I have now done so. He was right.

The witness had testified on direct examination that she walked out on a dock and threw the murder weapon into the lake. On cross examination my adversary asked how she could see to walk out onto the dock without falling in the water herself. She said she could see by the light of a lamppost in the distance. There was no lamppost on the lake. I went to the almanac and discovered that there was a full moon that night, and it would have been high in the sky when she was at the lake.

Thus, my almanac trial was the reverse of Lincoln's Almanac Trial. Another difference: in the Almanac Trial, the position of the moon was of central importance. In my almanac trial it was a minor issue. What was important about my witness's testimony wasn't whether there was a lamppost where she said it was. What was important was whether the murder weapon was where she said it was. Divers found it exactly where she said she threw it.

Our varying recollections about the witness's testimony are instructive on questions of memory, reminiscence, and the validity of testimony. Both my friend and I remembered the gist of the incident--disposal of a gun on a dock during the nighttime & questions about the light available at the time. What we disagreed about were the details, and in this instance the details were insignificant to the point of the witness's testimony. What was significant about the testimony was whether the gun was where she said it was, not how she could see to put it there.

Our differing recollections of the incident did not mean that either one of us were lying. Nor did they mean that the incident didn't happen. I think this tells us that we need to be very careful about evaluating the testimony of eyewitnesses, but that we should not reject the testimony out of hand simply because there is conflict in the testimony. I think the questions when dealing with conflicts in testimony are: (1) What is the important part of the testimony? (2) Do the conflicts in testimony go to the important content of the testimony, or do they go to less material matters? The less material the conflict, the less reason we have to discount the testimony.

I had this problem many times as a prosecutor. My witnesses agreed about the important details of an incident, but they were in "hopeless" conflict about the minor details. I've seen a lot of guilty parties go free because a defense attorney was able to transform minor conflicts into reasonable doubt. I took advantage of this tactic many times when I was a defense attorney, and I had it used against me many times after I became a prosecutor.

I often found myself sorely tempted to make a specific argument to the jury in defense of these witness conflicts, but I never had the nerve. I was almost certain that if I made the argument I would draw a vociferous objection from the defense attorney, and that if the judge did not declare a mistrial, the appellate court would overturn the conviction. I therefore never made the argument, but I still like it because it fully exemplifies the point I'm trying to make. Since I have no defense attorney to object and no judge to declare a mistrial, I am going to make the argument now:

Conflict in testimony does not mean that anyone is lying, and it certainly doesn't mean that what they say happened didn't happen. For instance: Matthew says the superscription on Jesus' cross read "This is Jesus the King of the Jews." (27:37, KJV).  Mark says that it read "The King of the Jews." (15:26, KJV). Luke's version is "This is the King of the Jews." (23:28, KJV). John says the superscription read "Jesus of Nazareth, the King of the Jews." (19:19, KJV). Despite the fact that we have minor conflicts in the testimony about what the superscription said, there is no reasonable doubt about the main point of their testimony--Jesus was crucified.

It is best that I never made such an argument during a trial. When attempting legitimate persuasion, you do not want to use arguments which are so emotionally charged that they will sway your audience to accept your argument for emotional rather than logical reasons. Of course, in modern culture we are daily bombarded by arguments designed to sway our decisions by emotion rather than logic.

Any time I read a news article or hear a politician speak, I try to analyze what they are saying by stripping out the emotional appeal and seeing if I can find any logic in the argument. Sadly, I usually find very little sound reasoning at the core of most arguments. And this applies to all arguers on all sides of any issue, whether they are Democrat or Republican, conservative or liberal.  It's disheartening that we cannot cut through the demagoguery and decide issues on the basis of logical analysis.

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