The Eyewitness. And What We Should Consider About Our Own Opinions
January 13th, 2022 by admin
One of the most surprising truths concerning the trial of a lawsuit is about eyewitness testimony. It is often one of the most unreliable forms of evidence there is.
But how can a witness who is there to see the event in question be unreliable?
Most of us who watch the movie channels know about the eyewitnesses defense attorney Joe Pesci so artfully discredits in My Cousin Vinny. Does it really happen that way?
Not quite that convincingly most of the time, but it really does happen.
I remember well a case I had years ago when I tried cases more regularly than I do now. The other side said it had an eyewitness that contradicted my client’s testimony about an accident.
As it turned out, the eyewitness, as any lawyer could have shown, was some distance from the late-night accident, there were no streetlights at the scene, and there were other obstructions in the line of sight of the witness. But more than all of that, the witness had a very personal bias that became apparent after just a few questions. He had a bone to pick, and it was evident.
The case, which had merited no offers of settlement before the testimony of the “eyewitness,” was settled shortly after the now discredited eyewitness was shown to be not much of a witness after all.
And the eyewitness? The weaknesses exposed in his opinion had no impact on him. He continued to fail to see what he had originally failed to see. He was just not in a position to see things clearly, internally or externally.
Revealing.
In this instance, as in so many, many others, circumstances are not as clear as they may seem to the witness.
What makes the supposed eyewitness testimony a challenge is the witness believes what they say. Their otherwise credible persona may presumptively carry the weight of their opinion well past the facts even though their true sight line may be obstructed in ways the witness does not even realize. Unless you can show they did not see things as clearly as they think (generally, a hard thing to do), their honest opinion, despite being wrong, can lead to a poor result.
Do we have opinions, sincerely believed, that suffer from real obstructions to our internal and external line of vision of an issue? Do we hold any doubt that we may not be right on an issue? Apparently not so much anymore.
As the “eyewitness” in my case, the mind’s eye of the witness takes a snapshot of the facts, and their position is set. They have, generally quite earnestly, what they believe to be clarity. All doubts, obstructions, and biases are cropped out of the picture, even though, objectively, they are wrong.
We live in a country that is increasingly and stridently divided on so many issues, and politics and faith, for so many years subjects to be avoided among friends, are two of them.
Gone are the days of engaged but polite disagreement. And we no longer have just opinions. Everything is now a high principle, and when you elevate opinions to principles, you elevate the heat around the discussion of those issues considerably.
We should all hold tightly and firmly to true principles that guide our religious faith, our basic morality, and our professions. But most of our opinions, though firmly held, do not rise to that level, do they? After all, how can most of us have such clarity on some of our most important community and society issues? There is rarely a universally accepted answer, is there?
Added to the debate now is that our opinions are often shaped in part from information found on social media platforms, which make the application of solid rules of discernment harder to apply. There are no “Checkpoint Charlie” questions which are asked to get on social media. Statements may have little truth to them, or none at all. But oftentimes we do not know that. We sometimes give what we read or what some people say on social media a bit of a pass on our normal rules of discernment. Because what people write or say does not make it so. “People say” may mean nothing credible at all.
And a wholly untrue statement, based on not much of anything, repeated multiple, multiple times is often taken not only as the truth but the absolute truth. One needs only to look to some of the whoppers of the 20th Century, even BEFORE these Internet times, to see how profoundly untrue opinions (McCarthyism, WWII AXIS “Truths”), made repeatedly, can convince the most intelligent of people of a “truth” which is just not so. And they can serve to weaponize these statements/opinions against other points of view.
Psychologists and others will tell you most any statement, repeated several times, acquires the coat of the truth. What’s the power in your life when someone says: “Everyone is saying….”?
AND NOW WE SEE the impact of powerful and sophisticated Internet algorithms. Some of them unwittingly lead us further and further to what is the edge of credulity, or beyond. Some of them push a small handful of the same or similar statements, sometimes, as it turns out on occasion, by a relatively small number of persons, repeated over and over by these algorithms. These take on the identity of “many people” and a false and correspondingly convincing credibility which is, in fact, demonstrably not true.
And their impact? Who really knows it is not “everyone is saying” but the same relatively small group of people, times the unseen cyclotron of the algorithm, saying the same things, with sometimes small variations in wording, multiple times? Which is a completely different thing.
Which is why such comments of “everyone says,” “a lot of people say,” etc. would not be admissible in a court of law. The factfinder cannot possibly gauge whether they are true or not true.
You don't have to be a lawyer to add your own cross-examination of “eyewitness” statements given to you as the truth. But here are three questions you might consider asking yourself when strongly held statements of others (or your own) come to you:
1. Do you or the other person expressing the opinion have a clear sightline of the issue? There is a reason college and professional football referees use video replays from different angles to be sure they see what they need to see. And if someone is not an eyewitness but an “I was told” witness, you really should be very wary.
2. Do you or the other person have a personal bias about it all that shades your view of things? And have these opinions been subject to some of these social media challenges which often obscure from the most thoughtful of people what “everyone” is really saying. Or, not really saying at all? If the person with whom you are discussing an issue is largely getting their opinion from a social media platform that is not subject to professional journalistic standards, you should be wary. Whether the opinion is one with which you agree or disagree.
But the question that matters most of all may surprise you.
3. Why is it your job to “set them straight”?
Sometimes, the best approach is to “walk on by,” as that song of the past tells us. Which is a good reason to leave many things unsaid. The best problems, in law and in life, are the ones which never happen. Avoid arguments and disputes which just do not matter. Wise advisers from Proverbs to Polonius to the present give us this advice, and it is worth remembering and following, too.
Like you, I have opinions, and lots of them. And I am pretty confident I am right most of the time, thank you very much. But on my good days, I have come to understand there is always another side to an issue. And I would be wise to try to see it.
As a saying my wise father would repeat from time to time goes: we start getting smart when we realize how little we really know.
Since we are all eyewitnesses to our own strongly held opinions, it might be a good idea to recognize we may not have as clear a line of sight on issues as we think. And a person who has a different view may not really be the Boogie Man.
What I have learned about life on the way to the courthouse is this: some doubt about our own eyewitness opinions is a good thing. A little gentle cross-examination of our heartfelt opinions may take the edge off them and reveal an obstruction in our line of vision. And if the opinions of either of the parties are based on some social media platforms which shape our opinions on questionable “facts,” the subject may be the best discussion you never have.
Keep your eye on the friendship/significant relationship and avoid some of those discussions. Because they may take the debate to a place that is not worth going. And concern purported “facts” that just ain’t so.
Posted in: On the Way to the Courthouse