Podcast - Candor Saves Credibility in Courtrooms
The fastest way to destroy a witness' credibility is to let the jury think something is being hidden. Litigation attorney Dan Small draws on the mock trial case State v. Faulkner, used for his pro bono work in Uzbekistan, as well as lessons from the Appling County corruption case, to demonstrate this idea in his latest episode of "The Trial Lawyer's Handbook." Mr. Small explores why credibility is won not by pretending a witness is spotless, but by confronting weaknesses head on. From prior convictions and shady pasts to the prosecutor's old rule of BOBS — Bring Out the Bad Stuff — the discussion shows how honesty can defuse cross-examination, build trust with a jury and turn even a deeply flawed witness into a believable one. Along the way, it also highlights the striking cultural differences that emerged as Uzbek lawyers wrestled with the framework of an adversarial trial system and discovered that, in court, honesty is truly the best policy.
Listen to more episodes of The Trial Lawyer's Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook." In this episode we'll continue discussing the mock trial case State v. Faulkner and how we used it for my pro bono work in Uzbekistan, as well as use it to reflect on the Appling County corruption case. This episode is based on my latest ABA book Lessons Learned from a Life on Trial. If you missed or want to revisit the Appling County case, I talked about it thoroughly in episodes 93 through 99.
Few witnesses are perfect. Many have things in their past that they are embarrassed to talk about in open court. Yet those things may be discoverable by the other side and helpful to their cross-examination of the witness. Prior convictions, bad acts, inconsistent statements and more can be important points in assessing credibility on cross-examination.
In that environment, the worst thing a witness can do is try to hide anything. It's the old Watergate scandal maxim: The coverup can be worse than the crime. At the very least, it can make a manageable issue far worse by allowing the other side to be the one to bring it up and proclaim with a flourish that the witness tried to keep it from the jury. Watch me pull a rabbit out of my hat! There it is! For that reason, it's so important for the witness to tell counsel everything — good or bad — and for counsel to bring it out in the best possible light before the jury.
BOBS was the acronym that we used when I was a prosecutor: "Bring Out the Bad Stuff." In the Appling County case we've talked about, Billy Breen was the ultimate candidate for BOBS: a high-level career criminal who had only recently changed sides and was testifying for the government for the first time in my case. The first challenge was getting him to accept his history and then working with him to testify openly about it to the jury. In the end, he understood, and his shocking but complete honesty saved him as a witness. He came off as an honest criminal.
In Faulkner, both sides have BOBS problems. Both the government's key witness Shaun Royce and the defendant himself have prior criminal convictions. Interestingly, in the Uzbekistan exercise, both the prosecution and defense teams were initially vehement about not wanting to bring it up. "We can't be the ones to destroy our own witness' credibility," they argued, and a prior criminal conviction would surely do just that. If you think about it, in the old byzantine system that they had been using and were used to, the prosecution in a criminal case hands the judge a file, and the judge basically does everything from there. There is no trial back and forth. The judge handles it. If the judge wants to question witnesses, the judge can call witnesses. But what that means is that no prosecutor wants to hand the judge a file with a hot potato witness, with a witness that has serious problems. And so, they were afraid to do it in an actual trial setting.
Throughout this exercise, we worked hard not to tell the Uzbek lawyers what to do, not to tell them what was the "right way" or the "wrong way." We told them that we're there to present them with a menu of options, to explore, and to think about what they wanted. Our job was to provide information, suggestions and guidance to help them along. But if they're going to explore this new adversarial system, it was important that they tried to work these issues out themselves. Those discussions were sometimes the most interesting and the most productive. Sometimes they were hilarious, sometimes they were profound.
We suggested that since the other side already knew about the convictions, keeping them a secret was just not an option. They also probably did not have the choice to keep it out entirely — that was up to the court, which had ruled against them. The choice they might have is to control how and when the convictions came out, not whether. And that timing was essential to both their own, and to their witness' credibility. The jury would not only think that the witness was hiding something, they might conclude that the lawyer was in on the coverup. And that is going to kill their credibility, which is the most important thing that they have in front of the jury. It's a tough concept. Lawyers want their witnesses to be angels, it's uncomfortable when they're not. And doubly so when the lawyer has to bring out their own angel and their angel's flaws. But juries know that witnesses are human, and rarely angelic. To the jury, honesty is more important than purity.
Eventually, the Uzbeks understood, and they offered their witness' flaws, with explanation, on direct examination. In doing so, they learned that they could survive, and it took much of the sting out of the issue for cross-examination. BOBS, Bring Out the Bad Stuff. Lessons learned.