Robbins: Assessing credibility at trial

Credible. Adjective. Offering reasonable grounds for being believed or trusted.

Credibility. Noun. Deriving from the word credible.

He said, she said. Idiom. Often hyphenated as he-said, she-said. Refers to a type of argument or dispute where the truth is hard to determine due to the conflicting accounts of those involved. These situations typically lack objective evidence, leaving the matter to be decided based on personal testimonies. This type of dialogue often leads to confusion and speculation, as it is difficult to discern who is telling the truth.

Quotidian. Adjective. Occurring every day.

Rare is the trial where there is no conflicting testimony. Otherwise, if there were no dispute, why would there be a trial? If the parties agreed, would they not, instead, hold hands, enjoy s’mores around a smoky campfire, and perhaps fall into a round or two of “Kumbaya?”

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But oh my no, in a courtroom, conflict is, well … quotidian, as familiar to the halls of justice as are strutting lawyers, be-robed judges, and, metaphorically at least, banging gavels. Conflict is the very stuff of law.

As commonly as not at trial a witness (or two or three or more) for the plaintiff or the prosecution (that is the party who is advancing the claim) will raise her right hand and “swear to tell the truth and nothing but the truth,” following which, on interrogation from the lawyers she will speak her truth. Then, as sure as a clap of thunder follows a bolt of lightning creased across the sky, another witness (or two or three or more) for the defense will speak a different “truth.” Like some sort of dissertation on the advanced properties of physics, the witness for the prosecution will present the case for “matter” while the opposing witness will swear that antimatter is the thing at issue.

“A” is “A,” the first witness will declare while his or her counterpart will vow that “Minus A” is in fact the case!

In the enshrined words of former president George W. Bush, what is “The Decider” (judge or jury) to do?  If the case is A, plus Minus A, does that not cipher out to zero? And if zero is the case, why are we all here? Shouldn’t we instead be fishing, enjoying a ski day, or tearing up the trails on our Rockhopper XI mountain bikes?

The answer, as you may suspect by the title of this column, has to do with credibility.

Unless I don’t understand the physics of it, there cannot be both matter and antimatter concerning the same thing at the same moment. Similarly, “A” and “Minus A” cannot both be true. Would they add up to “Should we be doing something more productive with our time?”

So, in order to cut through the confusion, what The Decider has to do, instead of wrestling with advanced quantum physics, is assess human nature. Who among conflicting witnesses has an axe to grind, might profit by his or her testimony, is blinded by loyalty or fear, is fidgeting like an Orville Redenbacher kernel on a hot skillet, or might otherwise be swayed one way or the other, like a political operative, to “spin” what he has offered under oath?

What this all adds up to is credibility. 

Who among the conflicting witnesses is the more believable? What testimony is more persuasive? What among what has been offered makes more sense?

Credible evidence is evidence that’s likely to be believed.

And just as “credible” means “believable”, the noun “credibility” means “believability.” Someone “credible” is someone to be believed and “credible” testimony is that which the judge or jury can sink their teeth into as, more likely than not, having at least a ring of truth.

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Because credibility is a bit of a waifish thing (and because, we, after all, are all human beings and, by the time most of us reach adulthood are adept at sussing out the truth from falsehood), the trier of fact is given broad discretion to assess who is credible and who is not. Or, in close calls, who is the more credible of the opposing witnesses? As such, if a matter goes “up” on appeal, as rare as a sighting of Sasquatch are the times that the upper court will disturb the findings of the lower court on the grounds of improper assessment of one or more witnesses’ credibility.

Law for all of its formality, structure and calcified traditions, is at its core, about people, their lives, and stories. As such, when there are two opposing tales, it falls to the arbiter of the dispute to put their finger on the pulse of credibility and determine whose is throbbing with the ring of truth.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars” and “The Theory of Dancing Mice.”   

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