The Witness is a Liar… or Not

How many times have you remembered a conversation differently than someone else?  It is common that individuals experiencing the same event will remember it differently.  “Social scientists—and courts—sometimes refer to it as the ‘Rashomon effect,’ named after the Japanese film in which four witnesses to a crime describe the event in contrasting (and contradictory) ways.”[1] 

Rashomon is a 1950 Japanese film directed by Akira Kurosawa. The story of a man’s murder and the rape of his wife is told four different times, each from the point of view of one of the participants. While each participant’s version is different, it becomes apparent that each person has come to believe that their version is the truth.[2]

The film “leaves the viewer unable to decide the true facts.”[3]

I mention this because in the litigation process lawyers and parties are often confronted with contradictory testimony each witness swears under oath is true.  The gut reaction often is to simply declare one of them a liar, and instead pick the one that favors a particular party’s desires.  However, this approach is too simplistic. When evaluating a witness or statement’s credibility, it is important to remember conflicting facts do not necessarily indicate an untrustworthy witness.

[1] Lancaster v. Lakey, No. 16-14093, 2018 U.S. Dist. LEXIS 82068, 2018 WL 2239326 (E.D. Mich. May 16, 2018).

[2] Morgan v. Okla. Secondary Sch. Activities Ass’n, 207 P.3d 362, 368 n.6 (Okla. 2009) (dissent).

[3] Pellett Petroleum Co. v. Bates (In re Bates), Nos. 05-07616, 2007 Bankr. LEXIS 300, 2007 WL 473732 (Bankr. S.D. Iowa Feb. 1, 2007).