Should You Call the Witness a “Liar”?

Have you ever dreamt of conducting a “perfect” impeachment during cross-examination?  You know, the type of cross-examination that usually only happens in the movies,  impeaching the witness by pinning down their in-court testimony, and then calling them a “liar” when you confront them with undisputed proof that shows their statement is false? 

Almost every lawyer I know salivates at the prospect of impeaching a witness like that.  But before you start calling the witness a “liar,” let me share with you a lesson I learned from a Jedi Knight.

Just in case you’re one of the four people on the planet who’s never seen the Star Wars trilogy, let me give you a little background.  Our story starts “a long time ago, in a galaxy far, far away…”  In the first movie, Luke Skywalker is asking the Jedi Knight, Obi Wan Kenobi, about his father:

Luke Skywalker: How did my father die?

Obi Wan Kenobi: A young Jedi named Darth Vader, who was a pupil of mine, was seduced by the Dark Side of the Force.  He betrayed and murdered your father.

A clear and simple explanation, right?  But in the next movie, The Empire Strikes Back, Luke confronts Darth Vader.  During their light saber battle, they have this exchange:

Darth Vader: “Obi Wan never told you what happened to your father.”

Luke Skywalker: “He told me enough.  He told me you killed him.”

Darth Vader: “No — I am your father.”

So which is it?  Did Vader kill Luke’s father?  Or is he Luke’s father?  (I can’t believe you don’t know this stuff already.  It’s a heck of a lot more important than what happened to Mrs. Palsgraff!)  Luckily, our story doesn’t end there, and in the third movie, Return of the Jedi, Luke gets the answer to his question.  He returns to finish his Jedi training and asks Yoda if Vader is his father.  After Yoda confirms that Darth Vader is Luke’s father, Luke has this conversation with Obi Wan:

Luke Skywalker: Why didn’t you tell me?  You told me Vader betrayed and murdered my father.

Obi Wan Kenobi: Your father was seduced by the Dark Side of the Force.  He ceased to be Anakin Skywalker, and became Darth Vader.  When that happened, the good man who was your father was destroyed.  So what I told you was true.  From a certain point of view.

Luke Skywalker: A certain point of view?

Obi Wan Kenobi: Luke, you’re going to find that many of the truths we cling to depend greatly on our own point of view.

And that statement brings us to a valuable cross-examination lesson.  Just because the witness says something that you can prove is false, does that mean the witness is lying?  Maybe, maybe not.  But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the “L” word on your jury.

You don’t necessarily need the jurors to think the witness is lying, do you?  All you really need is for them to disregard his testimony, right?  It doesn’t matter why they disregard it, just so long as they do.  So why take on an extra burden for yourself?  And that’s why Obi Wan’s statement is so valuable.  If you can come up with a comfortable way for them to disbelieve his testimony, that’s all you need to do. 

What Obi Wan is saying is that you don’t need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken.  If you can show the jurors that this witness’s “truth” is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness’s testimony, without being put in the uncomfortable position of having to call him a “liar.”

You probably already know that most jurors don’t like to think that witnesses are lying to them.  Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to “tell the truth, the whole truth, and nothing but the truth,” but then look the jurors square in the eye and lie to them.

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us.  But jurors don’t think like that.  Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them.  (Yes, they even expect 10x convicted felons to tell the truth.)  If you attack a witness’s testimony by calling him a liar, you’re going to need to prove that he lied.  If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

Before you plan your next cross-examination, ask yourself if you need to prove the witness is lying.  Is there an easier way to discredit his testimony?  Can you show the jury that his point of view conflicts with reality?  If so, consider making things easier for your jurors.  They may still decide to call him a “liar” in the deliberation room, but they won’t need to do it.  Just show them that they can disregard the witness’s testimony without calling him a liar, and you’ll make it easier for them to return the verdict you deserve.

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4 thoughts on “Should You Call the Witness a “Liar”?

  1. Nicely put. I love the star wars example. I think a soft cross has more impact than a hard cross. It leaves the decision on witness credibility in the jury’s hands where it squarely belongs. Have fun with the law school advocacy teaching; IMHO, one of the most fulfilling jobs on the planet.

  2. Absolutely true. Most people find it easier to accept that (i) the testimony is shaky and (ii) the witness could be lying – if they reach the conclusion on their own. We all tend to take a critical view of contentions asserted strongly. A gentle suggestion can reach deeper because we view the conclusion as our own idea.