Uncovering Credibility

The project of evidence law is in many ways analogous to that of the author or artist. All seek to expose deeper truths. While the novelist can freely invent character and corresponding behavior, evidence law uses fictive devices to recreate a coherent narrative from ostensibly unimagined facts. It does this, in part, by structuring the ways in which we assess witness credibility. What witnesses say is at the heart of most trials and whether to believe those witnesses is an overarching concern. The novelist or painter can show us the inner life of characters through an omniscient narrator or a telltale blush. Evidence law employs a different, though no less evocative, means for signaling credibility. It makes otherwise irrelevant information admissible at trial as credibility evidence, encouraging fact-finders to consider the kind of person whose word they are being asked to accept by digging into that person’s past. In admitting this evidence, the law relies on a false equivalence between a propensity to lie, which will allegedly be uncovered through credibility evidence, and evidence tailored to the question of whether a witness should be believed, which is what is actually being offered to the fact-finder. This chapter seeks to disentangle the two concepts—propensity to lie and worthiness of belief—and in so doing to reveal the danger in mistaking a fundamentally authorial impulse to use worthiness and status-based distinctions to color in the narratives of the courtroom in service of a hyper-rational process of proof.