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Vail Daily column: The nature of witness testimony

Many years ago when my boys were still in grade school, we decided to take a family trip from Savannah to Charleston during their Thanksgiving break. If you haven’t been, both towns effuse a unique brand of Southern charm and history.

Savannah is where Sherman ended his March to the Sea, and in Charleston Harbor sits Fort Sumter where the first shots of the Civil War were fired. Of course, all about those bucolic cities is not the rift between the North and South; among other things, there are lovely Southern gardens, traces of the antebellum past and a vibrant arts and food scene. We saw abundant dolphins off Hilton Head and, that time of year, had the wide beaches to ourselves.



I WOULD HAVE SWORN …

Had I been hooked up to a lie detector, I would have passed with flying colors. There was no prevaricating; the memory that had planted firmly in my head was simply wrong.

Recently, I was telling a friend about our trip and, in particular, one of the more memorable moments involving our Thanksgiving dinner at a wonderful restaurant known as SNOB (for Slightly North of Broad). The story I was telling was how my younger son, then maybe 8 or 9, stuffed himself to the point that he looked (and apparently felt) as if he were pregnant with triplets. I was recounting that rather than going to a movie after dinner which is what we’d planned, all he could manage was to waddle back to our hotel suite, hard behind the Savannah River, plop down on the couch and moan.



At which point my wife chirped in. “That wasn’t in Savannah, Rohn. That was Charleston,” she said.

Taking pity on her poor memory, I said, “I remember the hotel room exactly,” and I began to describe it and where our poor, over-stuffed young ‘un had spread out in his misery.

My older son came to her rescue. “Charleston, Dad,” he said. “Not Savannah.”



I had a perfect image in my head. “Both of you are wrong.”

So we dashed to the computer and Googled SNOB. Which sits proudly in downtown Charleston on East Bay Street. I would have sworn …

Which is precisely the point.

Had I been hooked up to a lie detector, I would have passed with flying colors. There was no prevaricating; the memory that had planted firmly in my head was simply wrong.

So I began to think.

Had I been called to testify in a matter about SNOB, I would have raised by right hand, sworn to tell the truth and nothing but, and would have gone on to swear in good faith that SNOB was to be found in Savannah rather than in the shadow of Fort Sumter. And a jury, taking in my earnestness, would likely have believed me.

Last week, a pair was released from prison in Ohio where they had served their sentences for murder for just short of four decades. The problem was this; they had not committed the crime. The men were convicted wholly on the testimony of a then 12-year-old who recently recanted saying all those years ago, law enforcement had coerced him.

Sometimes witnesses dissemble. Sometimes, they intentionally protect their own backsides. Sometimes, like in my story about SNOB, they simply mis-remember. Sometimes, they mis-perceive. Sometimes, things are simply happening too fast and the mind cannot take it all in and filter it.

Another time I’ll tell you about a car accident we had in Prague where things were simply spinning too fast to be certain that my memory is completely right. Sometimes, a witness lacks the capacity to process it or lacks the words to accurately relate the truth.

If you are old enough to remember the McMartin Preschool fiasco in California, sometimes witnesses are manipulated either intentionally or merely by suggestion.

WITNESS TESTIMONY IS ESSENTIAL

What I am getting at is this. Trials are made up of certain elements of “proof.” Essential to all trials is witness testimony. “Please, Mr. or Ms. So-and-So, tell us your story. Tell us what happened. Tell us what you saw, or heard, or otherwise perceived.”

The jury would have loved me.

I would have spun my tale about Savannah and would have earnestly believed my every word. I would have implored the jury to adopt my version of events and would have painted pictures to accompany the fire in my eyes. I would have described the gargantuan meal my son had downed, how he had hauled his gravid self back to the hotel, and precisely where he’d plopped down on the couch and commenced to wail.

Only one thing … I was flat-out wrong. And had the jury believed me, some form of justice or another would have been miscarried.

A cautionary tale.

You would think that after what was then two-decades of practicing the law I would be immune to faulty memories. But, hey, rumors to the contrary, even lawyers are human. And we all, after all, make mistakes.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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