I’ve been following an excellent series of posts over at Alas, A Blog about the Kobe Bryant Case (1, 2, 3). In particular, a link to this article by Columbia Law Professor Michael C. Dorf caught my eye. Probably because he was a college friend of my brothers, and we just happened to bump into him the other night at a Korean restaurant. But also because his article made a very interesting point. You see, people always seem to say something is “he says, she says” as if that means there is no way of telling the truth in the matter. Dorf makes an eloquent rebuttal of that common-sense notion:
In general, jurors can draw on everyday experience to determine who is lying and who is telling the truth-a skill everyone employs (with varying skill) in his or her daily life. But jurors can also look to the witnesses’ motives to lie.
When they assess the accuser’s credibility, they may ask whether she is so mentally unstable as to have fabricated or imagined the events she alleges? Does she have an independent reason to want to ruin the defendant’s life? Does she stand to gain financially from a conviction (by filing a civil suit), and if so, is there reason to think that she is the sort of person who would bring a false criminal charge for that reason? Absent some such evidence, if the accuser strikes the jurors as credible, they may accord strong weight to her testimony. … Almost anybody in Bryant’s circumstances-whether wrongly accused or guilty-would not hesitate to deny the charges. Not only is the crime of which he is accused a serious one, but the consequences of a conviction are severe. Thus, in assessing Bryant’s credibility, the jury will likely have to depend more on its assessment of his credibility when he testifies-Is his story internally consistent? Does his demeanor suggest prevarication?-than the mere fact of his denial.
UPDATE: I think it important to add that assessing the status of speech as evidence is actually encoded in our language. Linguists call this “quotative evidentiality” This page has some good examples of evidentiality in English. Here is a bibliography on the subject. And here is another one.
