HOW JUDGES DECIDE WHO IS BEING TRUTHFUL
Often in family law judges hear two or even more very opposite accounts of an event.
Except in criminal cases, the person asserting a fact must prove it “on the balance of probabilities.” This means the judge must decide if it is more likely than not that the alleged event occurred and there are various ways judges assess credibility.
One judge explained the process [1] by confirming that she considered (as the law requires) all the evidence, but said:
“It is important to note, however, that credibility assessment is not a science. It is not always possible to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events and… assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”
With these cautions in mind, the judge then outlined some factors to consider in this process:
- The inconsistencies and weaknesses in the witness’ evidence, including internal inconsistencies, previous inconsistent statements, the documentary evidence and testimony of other witnesses.
- If the witness had an interest in the outcome or was personally connected to either party.
- Did the witness have motive to deceive?
- Did the witness see the factual matters about which he/she testified?
- Did the witness have sufficient recollection to provide the court with an accurate account?
- Would a practical and informed person find the evidence reasonably probable given the particular place and/or other conditions surrounding the event being discussed?
- Was there an internal consistency and logical flow to the evidence?
- Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased?
- If appropriate was the witness capable of making an admission that was against his or her interests?
- Did the witness give self-serving evidence?
The judge went on to say that she placed “little weight” on witnesses’ demeanor because that is often not a good indicator of truthfulness and noted that a judge is not required to believe or disbelieve all of a witness’ evidence, but rather can believe none, part or all of the testimony and attach different weight to difference parts of the evidence.
There are ways to give more effective evidence. Watch for my upcoming article later this year for tips.
[1] MacNeil v. Playford 2010 NSSC 330, per Justice T. Forgeron.