Given the current state of evidence pertaining to Judge Kavanaugh’s fitness to serve on the United States Supreme Court, the Senate’s majority decision to confirm appears assuaged by its persistent assertion that the allegations of misconduct leveled against the judge boil down to a case of she-said-he-said and that not even a criminal prosecution could sustain a conviction on such insufficient evidence.
I respectfully disagree.
My training as a lawyer (46 years in practice) informs my assessment of testimonial and other evidence regardless of politics. As a criminal defense lawyer who specializes in felony appeals of convicted murderers and sex offenders, I viewed the live testimonies of Dr. Ford and Judge Kavanaugh before the Senate’s Judiciary Committee hearing with keen interest as well as a suspicious eye and ear.
The tools employed by jurors in assessing witness credibility in criminal trials have cross-over application to this “job interview” process. In many criminal trials involving allegations of sexual assault, particularly in cases of delayed reporting, there is either no corroborative physical or other evidence to support the alleged victim’s claims, or such corroboration is inconclusive.
Occasionally, there are prior consistent or inconsistent statements offered by the prosecution or defense to either bolster or undermine the prosecutrix’s credibility. Had the Senate Judiciary Committee’s hearing been a criminal trial heard by 12 impartial jurors, and had the evidence come down to a she-said-he-said, such a jury would have been entitled to convict if they believed the testimony of Dr. Ford over that of Judge Kavanaugh.
Criminal trial juries are routinely instructed on the issues of witness credibility. The following witness-credibility factors are part of pattern jury instructions routinely delivered across the country in both criminal and civil cases.
“Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:
The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; the ability of the witness to remember or to communicate any matter about which the witness has testified; the character and quality of that testimony; the demeanor and manner of the witness while testifying; the existence or nonexistence of a bias, interest, or other motive; the existence or nonexistence of a any fact testified to by the witness; the attitude of the witness toward this action or toward the giving of testimony; a statement previously made by the witness that is consistent or inconsistent with his or her testimony; the character of the witness for honesty or truthfulness or their opposites; an admission by the witness of untruthfulness.”
Juries are also instructed that “Discrepancies in a witness’s testimony or between a witness’s testimony and that of other witnesses, if there were any, do not necessarily mean that a witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a transaction often will see or hear it differently. You should consider whether a discrepancy relates to an important matter or only to something trivial.”
Additionally, juries are told that “You should give the testimony of a single witness whatever weight you think it deserved. Testimony concerning any fact by one witness, which you believe, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.”
If a jury in a she-said-he-said case found the accused guilty by applying the constitutionally mandated standard of proof beyond a reasonable doubt (I’ve handled many such cases on appeal), an appellate court would be obliged to uphold the jury’s verdict if the appellate court concludes — after examining the entire evidentiary picture put before the trier of fact including all reasonable inferences to be drawn from that evidence — that a reasonable juror could have found guilt beyond a reasonable doubt.
Importantly, it matters not how an individual appellate court judge might have decided the case had they sat on the jury. This is so because only the trier of fact in the lower court has the opportunity to assess in real time the live testimonies of witnesses and other evidence presented. (See Cavazos v. Smith (2011) 565 U.S. 1, 6; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
The standard of review is the same in cases in which the prosecution relies on circumstantial evidence. Even where circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt, even if the appeal court believes that the circumstances might also reasonably be reconciled with a contrary finding.
Edward H. Schulman is a Kailua-Kona attorney.