Part III. The Credibility Chicanery
This is Part III of my examination of shibboleths in the Pennsylvania Standard Criminal Jury Instructions.
Three Pennsylvania Standard Criminal Jury Instructions walk up to the bar of “justice”…
The first one, Instruction 4.17, says,
I’m the “general credibility of witnesses” instruction. Here’s what I think the jury should know:
As judges of the facts, you are sole judges of the credibility of the witnesses and their testimony. This means you must judge the truthfulness and accuracy of each witness's testimony and decide whether to believe all or part or none of that testimony. The following are some of the factors that you may and should consider when judging credibility and deciding whether or not to believe testimony:
a. Was the witness able to see, hear, or know the things about which [he] [she] testified? b. How well could the witness remember and describe the things about which [[he] [she] testified? c. Was the ability of the witness to see, hear, know, remember, or describe those things affected by youth, old age, or by any physical, mental, or intellectual deficiency? d. Did the witness testify in a convincing manner? How did [he] [she] look, act, and speak while testifying? Was [his] [her] testimony uncertain, confused, self-contradictory, or evasive? e. Did the witness have any interest in the outcome of the case, bias, prejudice, or other motive that might affect [his] [her] testimony? f. How well does the testimony of the witness square with the other evidence in the case, including the testimony of other witnesses? Was it contradicted or supported by the other testimony and evidence? Does it make sense? g. [give other factors].
If you believe some part of the testimony of a witness to be inaccurate, consider whether the inaccuracy casts doubt upon the rest of his or her testimony. This may depend on whether he or she has been inaccurate in an important matter or a minor detail and on any possible explanation. For example, did the witness make an honest mistake or simply forget or did [he] [she] deliberately falsify? While you are judging the credibility of each witness, you are likely to be judging the credibility of other witnesses or evidence. If there is a real, irreconcilable conflict, it is up to you to decide which, if any, conflicting testimony or evidence to believe. As sole judges of credibility and fact, you, the jurors, are responsible to give the testimony of every witness, and all the other evidence, whatever credibility and weight you think it deserves.]
The trial judge says, “You’re a really good instruction, 4.17. You explain everything the jury needs to know about how it should consider and weigh the testimony of witnesses. I’m definitely going to read you to the jury.”
The second one, Instruction 4.13B, says,
I’m the “victim’s uncorroborated testimony in sexual offense cases” instruction. Here’s what I think the jury should know:
The testimony of the “victim” standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in this case. The “victim’s” testimony need not be supported by other evidence to sustain the conviction. You may find the defendant guilty if the testimony of the [complainant] convinces you beyond a reasonable doubt that the defendant is guilty.
The trial judge says, “You’re a really good instruction, 4.13B. Even though you don’t say anything that 4.17 hasn’t already said, I’m still going to read you to the jury.”
The third one, Instruction 4.15, says,
I’m the “false in one, false in all” instruction. Here’s what I think the jury should know:
If you decide that a witness deliberately testified falsely about a material point, [that is, about a matter that could affect the outcome of this trial,] you may for that reason alone choose to disbelieve the rest of his or her testimony. But you are not required to do so. You should consider not only the deliberate falsehood but also all other factors bearing on the witness's credibility in deciding whether to believe other parts of [his] [her] testimony.
The trial judge says, “You’re a terrible instruction, 4.15. Even though you’re a correct statement of Pennsylvania law, you don’t say anything that 4.17 hasn’t already said. I’m not going to read you to the jury.”
“But, Judge,” says 4.15, “while I’m similar to 4.17, I give the jury a little more information about how it can and should consider the testimony of a dishonest witness. Specifically, I let the jury know that it can reject the entire testimony of a witness if it believes that the witness intentionally lied about a material fact. 4.15 doesn’t tell that to the jury. Also, Judge, you read 4.13B to the jury even though it says fundamentally the same thing as 4.15.”
Oh… are you waiting for the punchline? Unfortunately, there isn’t one.
All three of these instructions overlap with each other to some degree. Yet, Instruction 4.13B- the victim’s uncorroborated testimony– is always given when warranted by the evidence and requested by the prosecution, while Instruction 4.15– False in One, False in All– is rarely given, and never given by some judges, even when warranted by the evidence and requested by the defense. Even though Instruction 4.15 is a standard Pennsylvania criminal jury instruction, the Superior Court of Pennsylvania has said, “the False in One, False in All Rule is much to do about nothing. It mandates nothing and merely gives the jury the right to accept or reject testimony as the jury sees fit. This was adequately explained by the [trial court] in its general charge on credibility.” Commonwealth v. Carey, 439 A.2d 151, 159 (Pa. Super. 1981) (internal citation omitted).
But, the exact same rationale could be applied to the victim’s uncorroborated testimony instruction. Thus, Instruction 4.13B “mandates nothing and merely gives the jury the right to accept or reject testimony as the jury sees fit.”
As a sidenote, if Instruction 4.15- Fasle in One, False in All— is truly redundant, then why not give the instruction when a party asks for it? What harm would it cause? Why do prosecutors argue so vehemently against giving the instruction? It’s a relatively short instruction. Within the context of an hour and a half jury charge, the False in One instruction is a drop in the bucket.
Compare Instruction 4.13B to the instruction that the defendant– you know, the person who is presumed innocent– gets when he decides to testify:
3.09 CREDIBILITY OF DEFENDANT AS WITNESS: INTEREST,
The defendant took the stand as a witness. In considering the defendant's testimony, you are to follow the general instructions I gave you for judging the credibility of any witness. 2. You should not disbelieve the defendant's testimony merely because [he] [she] is the defendant. In weighing [his] [her] testimony, however, you may consider the fact that [he] [she] has a vital interest in the outcome of this trial. You may take the defendant's interest into account, just as you would the interest of any other witness, along with all other facts and circumstances bearing on credibility in making up your minds what weight [his] [her] testimony deserves.
You might ask yourself why wouldn’t the alleged victim and the defendant get the exact same instruction on credibility? That’s a good question. So, how about this:
Proposed 4.13C– Defendant's uncorroborated testimony in sexual offense cases:
Although the defendant has no burden of proof, the testimony of the defendant standing alone, if believed by you, is sufficient proof upon which to find the defendant not guilty in this case. The defendant’s testimony need not be supported by other evidence to raise a reasonable doubt about his guilt. You may find the defendant not guilty if [his] [her] testimony raises a reasonable doubt about his guilt.
We can, and should, go one step further. It is not enough that the jury believes that the accuser/ victim testified truthfully to find the defendant guilty beyond a reasonable doubt. The jury must also be convinced beyond a reasonable doubt that the defendant is, in fact, guilty of the alleged crime. A witness can testify truthfully and still be wrong. According to the Innocence Project 69% of DNA exonerations “have involved eyewitness misidentifications, making it the leading contributing cause of these wrongful convictions. Further, the National Registry of Exonerations has identified at least 450 non-DNA based exonerations involving eyewitness misidentification.”
Add to the problem of eyewitness misidentification the problem of difference of opinion about what happened. For example, one person might believe that a sexual encounter was consensual, while the other person might believe that it was not consensual. Both people might be telling the truth as they know it. So, it’s not enough for the jury to simply believe the accuser/victim. The jury must also find beyond a reasonable doubt that the defendant is lying.
Thus, Instruction 4.13B is actually not a restatement of Instruction 4.17– general credibility of witnesses. But rather, the two instructions are inconsistent with each other. As stated in Instruction 4.17– general credibility of witnesses,
The following are some of the factors that you may and should consider when judging credibility and deciding whether or not to believe testimony:
f. How well does the testimony of the witness square with the other evidence in the case, including the testimony of other witnesses? Was it contradicted or supported by the other testimony and evidence? Does it make sense?] g. [give other factors].
(emphasis added). Meanwhile, Instruction 4.13B essentially tells the jury that the accuser’s testimony need not “square with the other evidence in the case.” Nor must the jury consider whether the accuser’s testimony was “contradicted or supported by other testimony and evidence.” Rather, all the jury needs to do in order to convict the defendant is believe the accuser, notwithstanding any other evidence to the contrary, including the testimony of the defendant.
A better instruction might be something like this:
It is not enough for you to simply believe the testimony of the accuser. Before you may find the defendant guilty, you must be satisfied that he committed the crime beyond a reasonable doubt regardless of any evidence that has been presented in this trial. So, if you are unsure if the accuser testified truthfully, or if you are unsure if the defendant testified truthfully, or if you find that both the accuser and the defendant testified truthfully, or if you find that neither testified truthfully, you must find the defendant not guilty. You may only find the defendant guilty if after considering all of the evidence presented at this trial you conclude beyond a reasonable doubt that he committed the charged crime.
Three jury instructions walk up to the bar of justice…