In any kind of trial, whether the matter involves a boating accident or disagreement over a shipyard contract, the outcome can often boil down to testimony from witnesses. It could be something someone heard. “I was standing right next to her. She told the kids renting the jet-ski that ‘this thing can turn on a dime.’” Or it could be something someone saw. “Yes, I saw him take his hands off the wheel to light a cigarette just before the collision with the other vessel.” Whatever the setting, the common thread is the matter of credibility.
Our legal system is an adversarial one. One side wants to depict their own witness as having the integrity of a Boy Scout. And they want to depict the other side’s witness as being as trustworthy as a sidewalk card game hustler. Whoever succeeds in this contest will be perceived by the jury as being more credible. The object is to remove the threat posed by the other side’s witness. Let’s take a quick look at the tactics used to do this.
One such method is something we’ve all seen on courtroom dramas such as Perry Mason. It involves attacking the physical weakness of the testimony. The witness is asked to take off their eyeglasses, whereupon the jury sees that they can’t recognize their own sister from 30 feet away. Another version of this is to show that the witness had half a dozen drinks on the night in question.
Another method is to attack the character of the witness. This could involve producing evidence that shows the witness has a reputation for being a liar. Continuing on that track, a related tactic is to show that the witness was convicted of a crime involving honesty.
Another approach is to challenge the consistency of the witness. The opposing attorney digs up a statement the witness made earlier which runs inconsistent with what they are now saying. “You’re now saying the other vessel was doing around 30 knots before impact. But you told investigators from the National Transportation Safety Board a year ago that you thought the other vessel was doing no more than 10 or 15 knots. Which is it?”
Another tactic is to show that the witness has a motive for saying what they are saying. We call this bias. It can be positive or negative. They could be looking to protect a family member. Or they could have an axe to grind with someone who did them wrong in the past. Or maybe they are partners with the plaintiff and stand to gain financially if the plaintiff wins the lawsuit.
If people will lie to protect those they cherish, one would suppose that if they said something good or positive about an adversary, it would be especially trustworthy. There’s an interesting illustration of this that dates back to a dark night on the Pacific Ocean in the closing days of World War II.
The U.S.S. Indianapolis was torpedoed on July 30, 1945 after delivering parts of the atomic bomb to Tinian, located in the Mariana Island chain. The Portland-class heavy cruiser now rests in 18,000 feet of water in one of the most remote stretches of ocean on the planet.
In the aftermath of the sinking, the Navy proceeded with a court-martial against the commanding officer of the Indianapolis, Captain Charles McVay. Although Captain McVay was blamed for the sinking, many issues about that night trouble historians to this day. Among these were the lack of anti-submarine protection for the cruiser and the manner in which rescue efforts were conducted.
In this court-martial, a most unique witness was called. This witness was Commander Mochitsura Hashimoto, commanding officer of the submarine I-58, which fired the spread of six torpedoes that sank U.S.S. Indianapolis. In the court-martial, Captain McVay was blamed for not taking the evasive measure of zig-zagging on his way to Leyte, in the Philippines.
Commander Hashimoto testified that it would have made no difference whether the Indianapolis had been zig-zagging that night. He would have been able to sink her anyway. (Sec. 575 – Sense of Congress on the Court-Martial Conviction of Captain Charles Butler McVay). In defending Captain McVay’s decisions on that night, the submarine commander’s testimony is probably about as credible as testimony can ever get.
Best wishes for a Happy and Safe Memorial Day! Tim, Erol
Tim is a NY-based maritime attorney and has taught law at SUNY Maritime College. Erol is a graduate of CUNY School of Law and Farmingdale State College.