Tuesday, September 07, 2004

The Witness Lied-I Think

What you hear the trial judge say at the conclusion of the witness’s testimony: “Thank you. You may step down.” What you would hear if the judge gave voice to the raging thoughts he tied to a post in his mind: “You lying piece of offal.” The judge ultimately enters judgment against the party for whom the witness testified. On appeal the appellate court affirms the judgment because substantial evidence supports it. The trial judge has said nothing about witness credibility, but that doesn’t matter. The appellate court relies on the trial judge’s implied findings that he did not believe the witness. The trial judge’s thoughts can now be safely unleashed from their tether to frolic at will.
Trial judges have enormous power. I once was a trial court judge, so I know. Their findings on credibility are given great deference by appellate courts. Trial judges instinctively know a liar when they see and hear one on the witness stand. Similarly they have an unerring sense of when a witness is truthful and forthright. From where do they get this superhuman power? There is no such course offered at the Judges College. A few years ago a judicial education program offered a course purporting to teach one how to tell whether a witness is lying. The course was cancelled, however, when my wife decided she was too busy to teach it.
Up until recently I gave little thought to credibility findings. When I was invited to speak to a group of Administrative Law Judges (A.L.J's) about credibility findings, I accepted on condition that no one eat turkey for 24 hours prior to my talk. L tryptophan would not enhance audience attention to this seemingly dull topic.
In fact, the topic was not dreary. It prompted me to question how judges in fact judge credibility. How do we know whether someone is telling the truth or lying? Sometimes we just know it in our gut. There is that ineffable quality that exudes from some people and forms these words encased in a bubble over their heads, "I am a sleazy scum bag for whom the truth is as welcome as West Nile virus." But who knows whether the trial judge has it right? Certainly not appellate justices. I suppose in rare cases an appellate judge might question credibility findings, when, for example, a trial judge credits the testimony of Stevie Wonder and George Shearing, each of whom swear they saw plaintiff stumble on the curb and hold his ankle in pain .
But what would happen if trial judges had to document their credibility findings based solely on demeanor? How would they articulate such findings for a reviewing court? I broke out in a cold sweat at the thought. But no judge has to do this, right? Wrong. No one except . . . Administrative law judges. They make important decisions that have a profound effect on the public and on the lives of the parties appearing before them. They adjudicate a plethora of decisions made by state and local governmental agencies. These decisions concern, among other things, professional and vocational licensing, professional and employee discipline, payment of disability and retirement benefits, and land use issues. They write their own detailed decisions stating their findings. And of course they routinely make decisions based on the credibility of witnesses. On writs of administrative mandamus heard by the superior court, are credibility findings of the ALJ entitled to deference? In many cases the answer is yes, but it comes with a price.
Government Code section 11425.50 (a) requires ALJ's to write a statement of the factual and legal basis for their decisions. And when their decisions include a determination based substantially on witness credibility, 11425.50 (b) provides that the ALJ's written "statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination." And to show how valued these findings are, section (b) goes on to tell courts they must give "great weight" to these credibility findings. California Youth Authority v. State Personnel Bd. 104 Cal.App.4th 575 at p. 588 (2002) citing the Law Revision Commission's comments to section 11425.50 (b) concludes that the ALJ 's credibility findings are not entitled to great weight unless the determination derives from the judge's observation of the demeanor, manner or attitude of the witness.
So, to get deference, the ALJ has to identify or describe what it is about the witness that leads to the conclusion of truthfulness or prevarication. I thought back on the innumerable cases I had heard as a trial judge when I was certain a witness or two lied through his or her teeth. I have not forgotten the testimony of an expert statistician. Lies and damned lies paled in comparison to his statistics. If I had been an ALJ I would have gotten no deference on that one because my determination was not based on his demeanor, attitude or manner. But what if it had been? How does one go about describing why a witness is a lying S.O.B? Does this not involve a creative recitation of the judge’s perceptions, something not reflected in the record? With great empathy for the ALJ's, I tried to fashion credibility findings from another case I had heard when I was a trial judge.
“The witness was perched on the edge of his chair like a trapped condor hoping for an updraft to carry him away. Tiny beads of sweat formed on his forehead like drops of condensation inside an old refrigerator. As the noose of cross-examination tightened around his neck he blurted out an answer that sounded like a scream. His wild eyes bulged as tentacles of terror closed round his heart. I have noted the witness’s nervous twitches and discomfort. In my view the witness is . . . .” The witness is what, a liar or highly credible?
Could not either conclusion apply? A nervous and fidgety witness may simply be exhibiting discomfort in a courtroom where he is the center of attention. His uneasiness may have nothing to do with his truthfulness. The witness who hesitates and stammers may be searching for the truth as opposed to the cool and collected witness whose pat answer is a packaged lie.
Identifying aspects of credibility can be particularly dicey in novel cases, say, for example, when someone sues himself. That is what happened in Lodi v. Lodi 173 Cal.App.3d 628 (1985) a case written by a distinguished jurist, Justice Richard Sims, who coincidentally also authored CYA v. Henderson. If Dickens had written about the Lodi case he might have titled his novel, “The Best of Times—The Worst of Times.” Lodi's complaint alleges that he, Lodi, as a defendant is the beneficiary of a charitable trust, the estate of which should revert to him, Lodi, the plaintiff. Apparently plaintiff and defendant could not agree to settle the matter. Defendant Lodi was served but failed to answer. Plaintiff Lodi sought a default judgment. The trial court's dismissal of Lodi's complaint was affirmed by Justice Sims and his colleagues. Justice Sims with characteristic insight noted the even handed application of justice accorded Lodi. True, Lodi lost, but he also won. Driven by unwavering rectitude, Justice Sims ordered each party to bear his own costs. It is rumored that after the decision the Lodis reconciled, made dinner at home and watched a movie on television, “The Three Faces of Eve.”
I shudder to think what would have happened if the Lodis had gone to trial. I can envision plaintiff and defendant Lodi, each telling his respective lawyer to “sue the bastard” and show no mercy. No doubt discovery would have been an ordeal, but the trial would have been a nightmare. Imagine the difficulties facing the trier of fact if he or she had to identify credibility findings. What if the judge believed Lodi, but disbelieved Lodi? The findings might read as follows: “Plaintiff Lodi was the only credible witness. His answers to defendant Lodi’s convoluted questions were forthright. Lodi was patient and reserved. In contrast, Lodi was fretful, evasive, and hostile. He refused to look Lodi in the eye, slumped in the witness chair and stammered when answering the most simple questions. For Lodi, the truth is a pendulum, which under Lodi’s careful cross examination, sliced Lodi’s lies in half.”
Credibility findings whether articulated or not can have serious repercussions. About 35 years ago, a Municipal Court Judge sitting in traffic court found his wife guilty of speeding. After rejecting her defense before a packed court room, he questioned her veracity, lectured her on traffic safety, and fined her $100. Before calling the next case, he said,"see you at home for dinner, honey.” I have been unable to verify the rumor that he was hospitalized that evening for ptomaine poisoning.
It occurred to me the other night while listening to Fred Astair’s version of Gershwin’s “Anything Goes,” that sooner or later there will be a case where a judge appears before himself. I would hate to appear before me. I am tough on myself and put little stock in my credibility. I would no doubt impose a heavy sentence on me, and this is in a civil case. In a criminal case, I would definitely file an affidavit of prejudice.
For the time being, trial judges do not appear before themselves. Nor are they required to do the heavy lifting required of Administrative Law Judges and explain credibility findings on witness demeanor to get deference from higher courts. But I no longer feel sorry for Administrative Law Judges. I have heard that many supplement their income by selling the movie rights to their credibility findings.

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