Thursday, August 16, 2012

Credibility of Witnesses

By: John J. DiMotto

     One of the most important functions of the "fact finder" in a judicial proceeding is to determine the credibility of the witnesses and the weight of the evidence.  In a jury trial, the "fact finder" is the jury.  In a court trial or when resolving motions, the "fact finder" is the judge.  So, what does the "fact finder" have to do in order to decide credibility and weight?  How does the "fact finder" make the determinations.  What are the guiding principles with respect to the determination of credibility or witnesses and weight of evidence?  A look at Wisconsin case law and the Standard Jury Instructions, Criminal (300) and Civil (215), gives us guidance and some answers.


Jezeski v. Jezeski, 316 Wis.2d 178 (Ct. App. 2008)
1)  The fact finder has the responsibility to gauge the persuasiveness of the testimony.
2)  The fact finder resolves conflicts and inconsistencies in the evidence.
3)  The fact finder may believe some testimony of one witness and some testimony of another even though their testimonies, read as a whole, may be inconsistent.
4)  Unless testimony is inherently incredible, an appellate court may not substitute its judgment for the fact finder's judgment.

Teubel v. Prime Development Inc,, 249 Wis.2d 743 (Ct. App. 2002)
1)  The fact finder is the ultimate arbiter of the credibility of witnesses and the weight to be given to each witness' testimony.
2)  This is especially true because the fact finder has the opportunity to observe witnesses and their demeanor.
Covelli v. Covelli, 293 Wis.2d 707 (Ct. App. 2006)
1)  In a court trial, weight and credibility to be given to testimony is uniquely in the province of the trial court.
2)  The trial court has a superior view of the total circumstances of the witness's testimony.

State v. Kimbrough, 246 Wis.2d 648 (Ct. App. 2001)
1)  A trial court has the responsibility, when acting as the fact finder, to determine the credibility of each witness and can properly reject even uncontroverted testimony if it finds the facts underpinning the testimony untrue.
2)  Even when a single witness testifies, the trial court may choose to believe some assertions of the witness and disbelieve others.  This is especially true when the witness is the sole possessor of relevant facts.

Bretl v. LIRC, 204 Wis.2d 93 (Ct. App. 1996)
1)  Credible evidence is that which excludes speculation and conjecture.

State v. Lossman, 118 Wis.2d 526 (1984)
1)  In weighing evidence the jury (fact finder) may take into account matters of common knowledge and experience in the affairs of life.

State v. Lombard, 266 Wis.2d 887 (Ct. App. 2003)
1)  Jurors (fact finders) are not required to base their determinations of the weight and credibility of witnesses on the number of witnesses who testify in favor of or against the existence of a disputed fact.

State v. Kienitz, 227 Wis.2d 423 (1999)
1)  The fact finder is not bound by opinion of an expert,  The fact finder can accept or reject the expert's opinion.
2)  The fact finder may accept certain portions of an expert's testimony while disregarding other portions.

State v. Zanelli, 212 Wis.2d 358 (Ct. App. 1997)
1)  Conflicts in expert testimony goes to credibility not admissibility of the evidence.

State v. Turner, 186 Wis.2d 277 (Ct. App. 1994)
1)  Credibility of witnesses is determined by words, tonal quality, volume and speech patterns -- all of which give clues as to whether the witness is telling the truth.

State v. Anson, 275 Wis.2d 832 (Ct. App. 2004)
1)  The fact finder has no obligation to believe everything a witness says.

Rohl v. State, 65 Wis.2d 683 (1974)
1)  Incredible evidence  is evidence that is in conflict with uniform course of nature or with fully established or conceded facts.

Cogswell v. Robert Shaw Controls Col, 87 Wis.2d 243 (1979)
1)  When more than one reasonable inference can be drawn from credible evidence, an appellate court must accept the inference drawn by the fact finder.

State v. Kimberly B., 283 Wis.2d 731 (Ct. App. 2005)
1)  It if the jury's (fact finder's) task to sift and winnow the credibility of the witnesses.

Olson v. Milwaukee Auto Ins. Co., 266 Wis.106 (1954)
1)  Where testimony at trial conflicts, the court must recognize that it was for the jury (fact finder) to determine where the truth lies.

Yates v. Holt-Smith, 319 Wis.2d 756 (Ct. App. 2009)
1)  Determinations of subjective interest or motivation of witness are factual ad left to the fact finder.

State v. Krueger, 314 Wis.2d 605 (Ct. App. 2008)
1)  In the courtroom, during a jury trial, the jury is the lie detector.

State v. Scott, 234 Wis.2d 129 (Ct. App. 2000)
1)  A trial is a search for the truth and as such impeachment helps the jury to evaluate credibility.

Sturdevant v. State, 49 Wis.2d 142 (1970)
1)  Mental impairment alone is insufficient to affect credibility.

     While case law gives us guiding principles, the "nuts and bolts" of what the fact finder looks for is best set forth in the standard jury instructions, criminal and civil.  The fact finder should consider:

1)  Whether the witnesses has an interest or lack of interest in the result of the trial.
2)  The witness's conduct, appearance and demeanor on the witness stand.
3)  The clearness or lack of clearness of the witness's recollections.
4)  The opportunity the witness had to observe and know the matters the witness testifies about.
5)  The reasonableness of the witness's testimony.
6)  The apparent intelligence of the witness.
7)  Bias or any if any is shown.
8)  Possible motives for falsifying testimony.
9)  All other facts and circumstances during the trial that tend to support or discredit the testimony.

     These nine factors can be summed in six words:  common sense and experience in life.
     There is no magic involved.

     In the final analysis, the determination of the credibility of witnesses and the weight of the evidence is solely within the province of the fact finder be it the trial court or the jury. 


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  2. Wondering:
    4) These time lines can be extended by consent or for good cause. see 48.315.

    This is under the TPR...I know a judge decides if this is granted, but is there a list somewhere of what "good cause" is?

  3. There is no "list" per se. Judges evaluate every request for an extension of time based on what is reasonable given the specific facts and circumstances in the case pertaining to the request.

  4. What are significant grounds for joint custody?

  5. Under Chapter 767,there is a presumption in favor of joint legal custody. However, the facts and circumstances of every case will be considered by a judge in terms of not accepting the presumption and awarding one parent sole legal custody.

  6. How bad is being impeached with prior statement given under oath in termination of parental rights case

    1. The trier of fact (judge or jury) determines the credibility of witnesses and the weight of the evidence so it is the trier of fact makes that determinatin.