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Why Defining a ‘Credible Witness’ in Criminal Trials Is a Slippery Slope

by Steve Horn

In the aftermath of her testimony before the U.S. Senate Judiciary Committee, Dr. Christine Blasey Ford was hailed by legal scholars, legal practitioners, and laypeople alike as a “credible witness.”

Blasey Ford, a psychology professor at Palo Alto University, testified at a hearing September 27, 2018, set up as a follow up to then-U.S. Supreme Court Justice nominee Brett Kavanaugh’s confirmation hearing to hear out sexual assault allegations made by her against Kavanaugh.

Kavanaugh also testified at the hearing, which will go down in history as one of the most watched televised congressional hearings.

“She was entirely credible,” Deborah Tuerkheimer, a Northwestern Pritzker School of Law professor told the Associated Press in the immediate aftermath of the hearing. “I thought she was someone who came across as interested in helping the Senators determine what happened. She acknowledged what she couldn’t remember. She was very clear and certain about what she could remember. She seemed without any kind of guile or political motivation.
“And I think it would be very difficult to come away from this morning’s testimony and not conclude she’s being truthful and that she’s a reliable witness.”

Tuerkheimer’s analysis was not an isolated affair, but rather one shared by President Donald Trump, who called her a “very credible witness” who gave “very compelling” testimony. That is, before he reversed course and said she was part of a Democratic Party “hoax” created to railroad his nomination of Kavanaugh.

Joining Trump across the political aisle was Senate Minority Leader Chuck Schumer (D-N.Y.), who said on CBS’s Face the Nation that she was “credible” even before she testified. “I think she’s credible and I think when the investigation is finished and when she testifies and Judge Kavanaugh testifies, I think a majority of senators will find her credible,” Schumer said.

Psychology researchers agreed, as did Nicole Holliday, an assistant professor of linguistics and cognitive science at Pomona College. Holliday pointed out to the publication Mic.com that the reason she came across as credible, however, had as much to do with how she looked and how that presented itself to the public as it did her presentation style and elocution, plus educational attainment level, among other things.

“Ford’s discourse is perceived as ‘credible,’ as Fox News’ Chris Wallace said, not just because of the words she spoke and how she spoke them, but also, very importantly, because of what she looks like,” wrote Mic.com. “When describing her speech as stereotypically feminine, Holliday noted the stereotype is that of a middle-class white woman.”

The discussion of “credibility” became so mainstream as applied to Blasey Ford that The New York Times put out a poll for its readership and social media followers that asked whether they found her credible. They quickly deleted the poll after disseminating it on Twitter, apologizing for publishing it and calling it “insensitive in light of the gravity of this hearing.”

Blasey Ford was not part of a criminal trial and, while credible by essentially any reasonable metric, the term itself has proven problematic in the realm of criminal law. That is summed up well in an article by BuzzFeed News.

“Ford is white, upper-middle class, married, and highly educated. She is calm but demure. She is visibly shaken yet steady. She could afford the therapy that helped document her psychological past,” wrote reporter Ann Helen Petersen. “She has a support system and the means to hire a lawyer. Imagine if you lack even one of these qualities. Imagine if your behavior, or your voice, or your face, or the life you’ve lived doesn’t perfectly match what is demanded of the ideal victim. Would you be believed?”

As it turns out, that answer is often a resounding “No.”

Middle-class Bias

An inescapable reality learned during the Kavanaugh-Blasey Ford saga—and in jury trials countless times prior to that—is that appearance does matter. Indeed, it matters greatly, so much so that an entire cottage industry has been created in order to prepare defendants during the pretrial phase to excel in a game that puts the lie to the theory of blind justice before the law.

“Jurors tend to consider any artificial altering of a defendant’s physical appearance, including eyeglasses, clothing style, clothing color, makeup, jewelry, and hairstyle,” wrote Sarah Merry in a paper titled “‘Eye See You’: How Criminal Defendants Have Utilized the Nerd Defense To Influence Jurors’ Perceptions” in the Journal of Law and Policy. “Yet, unless given specific instruction, jurors might not know how to properly consider those judgments in relation to the facts of the case.”

A cousin of the “credible witness” is the notion of witness and defendant character analysis. One scholarly paper, written in 2013 by Marquette University Law School Professor Daniel Blinka, calls the whole concept a conceit because of its inherent vagueness and worse, frequent bias.

“Simply stated, character, like race, is a social and cultural construct. The assumption that character is or should be grounded in psychology or any science is unwarranted and inaccurate,” wrote Blinka in the paper published in the Seattle University Law Review titled, “Character, Liberalism, and the Protean Culture of Evidence Law.” The “crudeness, fluidity, and amorphousness readily explain[s] why evidence law has had such great difficulty defining character.”

Blinka writes that character is defined, essentially, through the lens of a middle class value system. Think Blasey Ford, as a case in point, who also wore glasses.

In addition, he points to a trial advocacy textbook written for law school students that lays out what the prototypical “credible” person of “good character” looks like as a witness.

“Witnesses who lead responsible stable lives; who are members of the community; who have resided in it for a substantial period; and who have served their community or country are more believable,” explained that textbook, Trials: Strategy, Skills, and the New Powers of Persuasion, by University of Arizona College of Law professor Thomas Mauet. “Such witnesses meet jurors’ comfort level because they are ‘just like us.’ Common background information usually includes residence, family, education, job, and perhaps military and public service.”

Criminal defendants, however, have found that they, too, can play this game. Hailed as the “nerd defense” by New York defense lawyer Harvey Slovis, many criminal defense lawyers have advised their clients to come to court in a pair of glasses because it makes them look less threatening and, as the stereotype goes, smarter.
“I think the bottom line is we know people judge a book by its cover,” explained Lisa Wayne, then the president of the National Association of Criminal Defense Lawyers, to the publication Indiana Lawyer.

That has slowly shifted back to a stalemate, though, because prosecutors have begun to ask defendants and their legal teams if they wear prescription glasses; a “No” answer may evoke suspicion as it relates to truthfulness of defendants by jurors.

“Of course, this is the same strategy that guys of all races use on job interviews, early dates, or presentations when they need to appear more intelligent,” wrote the magazine Esquire in an article about the new trend. “Still, we never realized a prescription (or lack thereof) could end up perjuring you. Next time you find yourself in front of judge, probably best to stick with contacts.”

Courtroom Theatrical Production

Theory aside, courts have offered mixed rulings as to whether the theatrical production mode of courtroom conduct can have legs on which to stand.

For example, in 1983 the Massachusetts Supreme Judicial Court ruled in the case Commonwealth v. Smith that “The jury were entitled to observe the demeanor of the defendant during the trial” because in that case, the defendant moved about in the form of “squirms and smirks and laughs, or whatever you have seen him do,” as quoted by the prosecutor during closing arguments.

Even more severe was the case ruling for People v. Bizzell, a California Court of Appeals opinion that allowed for a prosecutor to preview a poor demeanor during his opening statement for the trial. Darris Bizzell’s “own behavior in the courtroom will indicate that he’s guilty,” said the prosecutor.

It turned out that the behavior was correctly forecast, as professor Laurie Levenson wrote in her 2007 paper “Courtroom Demeanor: The Theater of the Courtroom.”

“As predicted, Bizzell was his own worst enemy during trial. He displayed anger on and off the witness stand to the point his own lawyer had to remind him to be ‘careful,’” wrote Levenson, a professor at Loyola Law School of Loyola Marymount University. “These actions fed into the prosecutor’s argument that the defendant was out of control when he tried to kill his victim. In later proceedings, Bizzell complained that it was ineffective assistance of counsel for his lawyer to allow the prosecutor to make such arguments, but the appellate court disagreed and upheld his conviction.”

As the title of her paper implies, the courtroom is not merely a place where legal proceduralism ensues. Rather, it is a theatrical production played by two sides aiming to maneuver the biases of the juror onlookers who ultimately wield the power to decide issues of life and liberty.

“Jurors are not machines and courtrooms are not laboratories. Laboratories are controlled environments in which trial and error are accepted protocol. Even with rules of evidence, there is not the same type of controlled, sterile environment for trials,” wrote Levensen. “Moreover, because a person’s liberty is at stake, the trial-and-error approach to judgments is unacceptable. Rather, as we have learned from psychologists and sociologists, there is a dynamic to the courtroom that is more akin to, but not precisely like, a theater. Jurors use all of their senses, including their intuition, to reach their verdicts.”

Critics have called for that game to end, however, and a writing of new rules to construct a new terrain on which the competition is played.

Appearance and Rules of Evidence

In light of the plain reality that physical appearance is treated as a de facto piece of evidence by juries, Brooklyn Law School professor Bennett Capers has proposed that the Federal Rules of Evidence be amended to acknowledge that fact and place them within their fold. Those rules of evidence decide what can (and cannot) be seen or heard, both during pretrial motions and during the trial, by the jury and court.

Capers, a former assistant U.S. attorney in the Southern District of New York, points out that a loophole exists in that many pieces of evidence, not listed as such in the rules of evidence, affect jury behavior and ultimately outcomes of cases themselves.

“The goal too is to call attention to the dissonance between what we tell ourselves about the Rules of Evidence—that they screen all information that juries may hear or see—and the reality: that ideas communicated through dress are routinely considered by juror,” wrote Capers.

Only twice has the U.S. Supreme Court set a precedent that, indeed, appearance can impact jury behavior.

First came the case Estelle v. Williams, decided in 1976, which said those incarcerated in either pretrial detention — or prison during the appeals phase — should not be forced to wear prison garb to trial because that clothing serves as a “constant reminder of the accused’s condition implicit in such distinctive, identifiable attire [which] may affect a juror’s judgment” and “be a continuing influence throughout the trial.”

Second, in 2005, the Supreme Court ruled in Deck v. Missouri that during the sentencing phase of a death penalty case, the defendant cannot be forced to wear chains and shackles due to the prejudicial impact that can have.

Making an “appearance in shackles almost inevitably implies to a jury that court authorities consider him a danger to the community ... almost inevitably affects adversely the jury’s perception of the defendant’s character,” wrote the Court. It “thereby inevitably undermines the jury’s ability to weigh accurately all relevant considerations when determining whether the defendant deserves death.”

Appearance goes beyond clothing, writes Capers, and also into the arena of demeanor and of course, racial background. He is careful to write that those are but three examples, and the list could go on and on.

Capers calls for two solutions that he thinks could put a dent into the problem. The first is jury instructions, which are even more specific than those that exist now. And the second is an amendment to the rules of evidence themselves.

“After all of the evidence has been heard, the summations made, and the jury instructions given, the court should provide jurors one final document to take with them in the deliberation room: a document listing the witnesses who testified, and listing the exhibits admitted into evidence,” he wrote. “This checklist should be accompanied by a strong directive, both orally and in writing on the checklist itself, that this stipulated list of the evidence they heard and saw comprises the entirety of the evidence they may consider when they deliberate, and that their verdict must be based on evidence from this list and nothing else.”

Going above and beyond merely suggesting the introduction of such instructions, however, Capers wrote out a model of what such instructions could look like. Jury instruction, albeit not addressing the issues of appearance, already exist, though, and Capers calls that a “modest proposal.”

On the rules of evidence, Capers said that first and foremost, “evidence” should have a definition, which it currently lacks. That definition, he suggested, should read that “Evidence includes anything that may come to a juror’s attention and factor into a juror’s deliberation.”

In reality, little indication exists that Capers’ proposal is anything close to a reality. But perhaps the commentary surrounding the Blasey Ford testimony and the Kavanaugh nomination debacle has provided a new opening to push for reforms toward that end. 

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Sources: apnews.com, paloaltou.edu, supreme.justia.com, brooklaw.edu, papers.ssrn.com, law.justia.com, esquire.com, theindianalawyer.com, waynelawfirm.com, law.arizona.edu, hslovis.com, psychologytoday.com, law.marquette.edu, buzzfeednews.com, twitter.com, dailydot.com, mic.com, latimes.com, fortune.com, paloaltou.edu, sltrib.com, rollingstone.com

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