We continue with Witnesses and the associated problems. Consider the roles of three actors: The witness (bound by FRE 602 and 701), the attorney, and the factfinder; what inferences or guesses can each draw and how? Consider the admissibility of two pieces of testimony in a negligence case alleging defendant was impaired by alcohol:
1) Witness says "Defendant was drunk."
2) Witness says "Defendant was under the influence of alcohol."
Then move to Impeachment: Introduction to Impeachment; do the Rules and the CS reading. From the reading, pull out two distinctions: 1) Collateral issues v. Non-Collateral issues; 2) Extrinsic evidence v. Non-Extrinsic Evidence. What does each mean and how do they relate to one another. The CS reading breaks down numerous pieces of credibility--we will expand on that in class. Also, review your notes from earlier in the semester about the trial process.
Finally, a word on demeanor evidence. As we said in class, it raises problems. The nonverbal cues do not reliably indicate truthfulness or untruthfulness as much as something else--nervousness or discomfort or pressure about being in court, etc. And many nonverbal cues and the conclusions we draw from them play on stereotypes or biases about race and gender.
In this case,
the state court of appeals reviewed (and reversed) a restraining order
barring a woman (the defendant) from posting certain information about
her estranged husband (the plaintiff) in the midst of a rancorous
divorce. The trial court served as factfinder in issuing the restraining order. This from pp. 10-11:
In an oral decision supporting the issuance of the FRO, the judge found plaintiff credible and defendant not credible based on "demeanor," "body language," and the content of the testimony. Specifically, the judge remarked that plaintiff's "demeanor was straightforward," "[h]e didn't embellish" his testimony, "[h]e didn't fidget" while testifying, and his "testimony ma[d e] sense." Conversely, according to the judge, defendant's "testimony didn't make much sense," particularly since she claimed she made the video for the rabbinical judges but addressed the plea in the video to anyone who could help her. Additionally, the judge pointed out that during questioning, defendant was "looking all over the room" and "there was a blank look in her face."
In a footnote at the end of this ¶, the court of appeals noted that "there was no request for recusal" of the trial judge--a strong hint that the court of appeals believes the trial judge was biased in how it evaluated the witnesses and perhaps should have been recused. The court of appeals resolved the case on First Amendment grounds, so the credibility of each witness did not affect the outcome on appeal. Still, the trial court's language reveals the concerns over demeanor evidence.
