Why can't we tell if the witness is telling the truth in court of law?

A witness is someone who saw a crime. The court of law summons that person to testify in the court what they saw at the time of the incident. This is called Testimony. It is the solemn duty of the witness to "to tell the truth, the whole truth and nothing but the truth”. Any misleading intent, while giving the testimony, if proven, is considered perjury which is a serious crime. The witness must stay calm and be clear in their statement speaking out what they mean. Cross-examination might be a tough process to go through, the witness must try to stay calm during that process as the questions might make them impatient which might lead the witness to say something the questioner wants them to say. Witnesses are given their statements that they gave to the police at the time of the incident, to read and remember what they said. 

Witness body language is studied in the court of law. The way the witness testifies and answers the questions, the confidence in the tone and spontaneity are factors that usually make them believable. Putting trust on someone who is showing confidence is a tricky thing because the witness might be telling and confidently repeating the statement they gave earlier or the witness is a liar and by practicing hard they can put forth the lie confidently. If the witness is telling the truth but they are nervous about getting the attention, then the true witness is losing the trust. It is not easy standing up in court and testifying and it may be an unnerving experience for some people which makes them lose confidence. 

The other factor to see if the witness is telling the truth is to observe the consistency of their statement. The witness is questioned in different ways regarding their statement to see the credibility in it. If the witness maintains the consistency in what they said earlier and what they say in the court, quite often they are considered trustworthy. Although this may seem to be a good way to consider, not all the time this might work. When there are two witnesses instead of one during the time of an incident and they discussed what they just witnessed. The witnesses might, not knowingly, get confused with what they saw and what they think they say because of the discussion they had. Observing the consistency might not work in cases where the victim or the witness is a child. With the questions repeating the incident, again and again, the child might not want to stay true to his statement and speak what the person questioning wants them to speak. If it is a victim, going back to the trauma takes a heavy toll on them so they look for the way to end the discussion about that incident. 

Stuttering and gaps in the statement are often considered liar traits but those gaps usually come from ordinary people who rarely face questioning in the court of law. It may happen that the witness might be telling the truth but their memory may not be serving them well enough to speak fluently.

Looking back at history, an oath played a prominent role in collecting testimony from the witnesses. It believed that by taking the oath before the testimony, in the name of God, witnesses are to speak only the truth and if they lied on the stand, the supreme power would not tolerate it. How courteous this may be, not every person who stands as the witness might be afraid of the judgment that might come later in life or afterlife. Statistically, there are types of people who tell the truth, whether they are on oath or not, just because of their integrity. Some tell the truth just because they are on oath and some do not tell the truth even on oath. This inconsistency makes the relation between religious belief and truthfulness questionable. Some might be willing to tell the truth just to avoid being punished because of perjury. Some who do not care about perjury and might willingly give false testimony in favor of or against the accused and some who are forced by the corrupt officials. There are methods suggested by researchers around the world to control the false testimonies in courts. Reforming the rules that oversee the examination and admission of evidence, and using modern science to identify false testimony and the truth. 

Let us consider a case where the defense is training their witness as to how their testimony should be. Now, although the witnesses must tell the truth, the defense might not want the witness to tell the truth that might harm the accused they are defending. During the cross-examination, the prosecutors may not want the version of the truth from the witness that might jeopardize their case against the accused. Both parties have their ways to work with the witness. It might lead to the point where the case depends on who works their way with the witness well. The authenticity of the whole truth will not be in the vicinity of those who are looking to find it from the witness.  Using the assistance of science when necessary does shed some light during false testimonies. Conducting tests on witnesses before standing on the trial might save a lot of “courtroom drama”. 

Let us go back to the previous example of two witnesses and let us also consider that they are testifying on the opposite sides.  Both witnesses might believe that they are the ones that are telling the truth and the other one is not. One of them is telling the truth and the other one’s memory is flawed. Then the court observes the factors such as consistency, which we discussed earlier, is how sure the witness is about his truth. Transparency, noticing the way the witness is giving the testimony and if they are hiding any information. The behavior of the witness in the court and how close the evidence is to the logic. However, despite using many methods, telling if the witness is telling the truth remains a big challenge yet to overcome. 

Reference: 

  1. “Why we can’t tell if a witness is telling the truth”, “The Modern Law of Evidence”, Adrian Keane, 2020.
  2. “You Do Solemnly Swear or that Perjury Problem”, “Journal of Criminal Law and Criminology”, Harry Hibschman, 1934.
  3. “Reasonable Doubt: Credibility in court and your behavior”,  Laurel Dietz, 2017.

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Blog Post written by:
Pavan Turaga
Intern
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