You are lying, you are a liar!

My PhotoEvan Schaeffer at has this post:

In the new book, Your Witness: Lessons on Cross-Examination, there is a chapter titled "Cross-Examining the Liar" by Chicago lawyer Dan Webb.

Webb, who has cross-examined scores of liars during his long career, begins the chapter by describing the two requirements that must be present before you even begin to think about trying to take on a liar at trial–

  • First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";
  • Second,  you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.
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One response to “You are lying, you are a liar!”

  1. Peter E. Brownback III says:

    The title of the post concerns me. It implies that counsel can tell a witness that s/he is a liar. I realize that 100 military judges have 100 separate opinions, but I would not permit this in a courtroom.

    In 1997 I published the note below to counsel in the 5th Circuit (Army – Europe). It lays out my reasoning on the matter:

    “Counsel practicing within the 5th Judicial Circuit,

    Counsel have, on many occasions, complained that I do not allow them to ask a witness if another witness is lying. That’s correct; I don’t. It is not up to a witness to tell the panel whether another witness is truthful or untruthful. The panel makes the determinations concerning credibility of witnesses.

    I do allow counsel to circumvent this prohibition by asking questions such as: “So, SPC Jones, you heard PFC Smith testify that you struck Miss Allen with your fist. Are you telling the panel that he is mistaken in his testimony?”

    For those of you who like legal foundations for what the judge does, I refer you to US v. Jenkins, 50 MJ 577, NMCCA. While in this case, the NMCCA focused on the questions by the trial counsel,

    The trial counsel asked appellant on 21 occasions whether other witnesses “were lying” when they testified during the Government’s case.

    The principle is basically the same for both sides. To paraphrase NMCCA somewhat

    Ultimate determinations of credibility are issues for the members. Cross-examination which compels (a witness) to state that (other) witnesses are lying is improper impeachment and opinion testimony.

    Note that counsel are not prohibited from arguing that one of the witnesses is a liar. That’s part of the “hard but fair” argument that is permitted. However, it is up to counsel to get facts from a witness – the counsel will then make the argument.

    COL Brownback”