During
the time I was a judge, I attended a number of Judicial College seminars during
which an "expert" or two discussed with the attending jurists the
problem of ascertaining whether or not a witness was testifying truthfully. The
discussions centered on body language, word and speech patterns, eye movements,
and other human quirks and tricks that were supposed to aid in the
determination of truthfulness.
Still,
every judge will tell you that there are situations in which it is very
difficult to tell fact from fiction in testimony. I am not talking about
differences in perception or in memory. The topic here is identifying the
flat-out lie that a witness wishes the trier of fact to perceive as a true
recounting of some past event.
Fortunately,
there are not a lot of situations arising in Domestic Relations proceedings
that lend themselves to prevarication. However, in certain cases, notably those
involving allegations of domestic violence or conflicts involving children, the
facts as related by the parties are simply too inconsistent to reconcile.
Someone is not telling the truth.
Sometimes,
a witness' version of an event simply is too far-fetched and inconsistent with
human experience to be believable. For example, in a case in which marital
infidelity was at issue, Wife testified that, although she met her alleged
paramour in a local drinking establishment, had a few drinks, went with him to
a nearby hotel where they spent the night, and was seen in a passionate embrace
with him as the two of them were leaving the motel the next morning, the fact
was that they were "just friends" who had too much to drink and
decided to sleep it off together. There was, she swore under oath, no sex
involved.
Sorry,
I was not buying it.
The
more difficult case is the "he said, she said" situation where the
stories clearly conflict and only one could be true. In a dispute over custody
of two very young children, the issue arose concerning Dad's allegation that
Mom repeatedly denied him time with the children. He testified that,
notwithstanding the court order that granted him parenting time, he would show
up at Mom's residence to get the children and she would not be present. She
testified, however, that he would repeatedly fail to come to her home at the
appointed time to pick them up.
In
the absence of any third party witnesses, it was extremely difficult to
determine what really happened. I always felt it was too bad that people do not
have a little red light in the middle of their foreheads that illuminated when
they were lying.
