The Kavanaugh Credibility Battle
The Senate Judiciary committee is hearing testimony from Christine Blasey Ford and Judge Brett Kavanaugh. A lot will be said and written about "he said, she said". This is a crude way of saying that the credibility of the witnesses will need to be assessed by the Senate. Yet, if credibility is the central issue, why doesn't anyone define what they mean by that term? What standards should Senators who will cast a vote, in large part based upon their personal findings of the credibility of these witnesses, use to reach that conclusion? Do average citizens even understand the legal tests used by fact finders whether they are a judge or jury to test the credibility of a witness? In my judgment, your average citizen and for that matter, average senator don't know how to break down the factors they should consider evaluating a witnesses' credibility.
Ironically, Congress has passed a law that describes how credibility ought to be determined. 8 U.S.C. 1158(b)(1)(B)(iii) is the statute that sets out this test. It is used for judges hearing immigration cases dealing with asylum. I've edited it to take out unnecessary verbiage.
"Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the " witness, the inherent plausibility of the " witness's account, the consistency between the " witness's written and oral statements, " the internal consistency of each such statement, the consistency of such statements with other evidence of record " and any inaccuracies or falsehoods in such statements ""
In U.S. v. Foster, 9 F.R.D. 367, 388 (S.D. N.Y. 1949) the jury was instructed:
"This judging of testimony is very like what goes on in real life. People may tell you things which may or may not influence some important decisions on your part. You consider whether the people you deal with had the capacity and the opportunity to observe or be familiar with and to remember the things they tell you about. You consider any possible interest they may have, and any bias or prejudice. You consider a person's demeanor, to use a colloquial expression, you "size him up" when he tells you anything; you decide whether he strikes you as fair and candid or not. Then you consider the inherent believability of what he says, whether it accords with your own knowledge or experience. It is the same thing with witnesses. You ask yourself if they know what they are talking about. You watch them on the stand as they testify and note their demeanor. You decide how their testimony strikes you."
Using these credibility tests, the recent Yale freshman allegation adds a new twist to the credibility determination, especially as it relates to Judge Kavanaugh.
A criticism of Judge Kavanaugh when he previously testified was his artful avoidance of direct questions concerning his viewpoints of settled constitutional law. While that may be an effective technique parrying positions on legal issues and pinning him down on how he may rule on them, using the credibility tests I've described, artful avoidance may not make him out as a credible witness on the events alleged to have occurred at teen-age drinking parties. "I do not recall" stated too much, sounds like an avoidance. Denying the events occurred is also a trap if there is a enough collaborating evidence that parties like the ones described did in fact happen.
Professor Ford may fall into common traps that may make it appear she is being evasive which may manifest in elaborate explanations especially regarding the length of time between the events and her testimony. Anger and advocacy are two things she will need to avoid that will adversely impact her credibility. Understated sadness and an appeal to individual privacy will send powerful messages. Judge Kavanaugh on the other had has a more nuanced problem. Misconduct as a drunken teenager even as bad as the Professor Ford incident has been described may not in and of itself disqualify him in the eyes of at least fifty senators. However, lying about it in the sense that collaborating evidence would support he was lying, belief that there is a pattern of misconduct or simply having just a few key senators form the belief he is less credible than Professor Ford when it comes to the likelihood some credible version of the events took place, could prove fatal to his confirmation.