Determining Credibility

posted by Judge_Burke @ 14:30 PM
August 31, 2017

Determining credibility is very complex. When you are doing it in the context of a civil order for protection or something similar, credibility decisions can be even more complex. All of us are fearful that “something might happen,” so what is the harm in granting an OFP? But, as Justice Brandeis wrote, “men feared witches and burned women.”

There are many faults with current judicial education, but among them is we spend little time learning how faulty our determinations about credibility can be. In the end, judges have to make the call as to who to believe…but there is another way of framing the question that might well be far closer to what the law expects us to do:  Did the litigant meet their burden of proof?

I thought that it may seem quite egotistical to post a portion of an order written by oneself…but then I read a quote from John Kenneth Galbraith, “ modesty is a vastly overrated virtue.” And so I share this passage from an order I recently wrote:

Determining credibility is among the most difficult tasks a trial judge has.  Judges make factual findings. Judges are not necessarily better than others at figuring out who is telling the truth.  For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did no better than chance in telling who was being truthful and who wasn’t.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013).  Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”  This decision will no doubt disappoint Officer [X] and the city attorneys who represented [City].  While the Court has made the credibility decision necessary, it has done so with the admonition of Judge Learned Hand in mind.

It is not true, as the State argues, that “In order for this court to find in favor of Defendant . . . this Court would have to believe Officer [X] lied twice under oath.”  We know from serious psychological studies that there is a phenomenon called the “Illusion of Memory.”  “The next time you hear a politician or celebrity make a false claim about what they remember, keep in mind that they might not be lying maliciously.  They might not even realize their memory is wrong (and if you tell them, they might not believe you).”  See Remarkable False Memories, Simons, Daniel, Nov. 16, 2010 http://theinvisiblegorilla.com/blog/2010/11/16/remarkable-false-memories/

When it comes to understanding the limits of our long-term memory we tend to hold entirely unrealistic, fallacious, and illusory expectations.  “In a national survey of fifteen hundred people [Chabris and Simons] commissioned in 2009, we included several questions designed to probe how people think memory works.  Nearly half (47%) of the respondents believed that ‘once you have experienced an event and formed a memory of it, that memory doesn’t change.’  An even greater percentage (63%) believed that ‘human memory works like a video camera, accurately recording the events we see and hear so that we can review and inspect them later.” (Chabris & Simons, 2010, pp. 45-46).  “People who agreed with both statements apparently think that memories of all our experiences are stored permanently in our brains in an immutable form, even if we can’t access them. It is impossible to disprove this belief . . . but most experts on human memory find it implausible that the brain would devote energy and space to storing every detail of our lives . . . .” (p. 46)  This Order is not premised upon a finding by this Court that Officer [X] lied but that our memories of even significant life events are quite fallible, and to put it colloquially:  [Officer X's] memory of what happened and his perception was more fallible that [Defendant's].

 


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