We know it happens.
It happens every day.
It happens in every case.
It happens in every civil trial.
When a witness comes into court and takes the 'witness stand', the first thing that happens is they are told to put their left hand on the bible and to raise their right hand.
Then, they are told to swear to tell the truth.
"Do you swear to tell the truth and nothing but the truth?" is a phrase we often hear in movies and TV shows about trials.
Of course, every witness says "Yes."
Why is it then that some witnesses shade the truth.
Some witnesses outright lie.
Some witnesses have memory lapses.
Some witnesses just aren't sure.
Some can't recall.
Some are really trying to honestly answer the question, but are confused.
Anyway, how do we really know if someone is telling the truth as they sit there on the witness stand and asked questions by the plaintiff's attorney and the defense attorney?
Isn't cross-examination reallly a search for the truth?
Isn't cross-examination an attempt to show contradictions in the witness' prior testimony?
Haven't we come to expect that on cross-examination the opposing attorney is supposed to extract testimony that shows the witness is a liar?
Let's say that a witness is caught in a lie.
An obvious one.
Let me give you a great example...
"Mr. Jones, have you ever been convicted of a crime?"
"Of course not," he replies, somewhat unsure where the attorney is going with this question.
"Are you sure?"
"Uh, yes, I'm sure," the witness answers.
"Do you live at 123 Main Street?"
"Is your birthday January 1, 1932?"
"Did you go to Jimmy John High School?"
"Have you lived at your current address continuously for the past 10 years?"
"Has there ever been a time during those 10 years where you did not live at that address?"
You can sense the foreshadowing.
You know what's coming.
The attorney has just set the witness up.
He has laid the foundation to destroy this witness' credibility.
He has sprung the trap.
He now turns to the judge and says "I offer this certified copy of criminal conviction into evidence."
He also says "I ask the court to take judicial notice of this criminal conviction."
The judge will allow this into evidence.
The attorney then hands it to the witness.
"Mr. Jones, please read the highlighted portion of that document."
"This certifies that John Jones was convicted of burglary in the year 2002. He was convicted after a trial and sentenced to a maximum security facility in upstate New York. He remained a prisoner from 2002 until 2010."
"Mr. Jones, were you convicted of burglary in 2002?"
"Did you go to trial in that burglary charge?"
"Did the jury find you guilty?"
"You were sentenced to prison for 8 years, correct?"
"So when I asked you the question earlier about living at your home address for the past ten years continuously, that was a lie?"
"And when I asked you earlier if you'd ever been convicted of a crime and you said 'no', that was also a lie."
What does this show?
It shows an extreme example of a witness being caught in an outright lie.
Ok, so now we've established that the witness has lied.
He's a liar.
His nose is growing bigger by the second.
His pants are on fire.
We know all that.
But let's get back to my original question I asked in the headline...
What happens to this witness who lies?
Is he going to jail because he lied in this civil lawsuit?
Is he going to get yelled at by the judge?
In all likelihood, none of that will happen.
If the witness has not committed a fraud or lied to authorities or filed a false document, then in all likelihood the biggest thing that will happen is his credibility will be destroyed.
He likely will not be referred to the district attorney's office for criminal charges. That does happen from time to time, but not for witnesses who shade the truth or hide the truth in these civil lawsuits such as accident cases, medical malpractice cases or wrongful death cases.
By the time cross-examination is finished, everyone in the courtroom knows that this guy is a liar.
But what does that have to do with his testimony and whether the jury will believe what he has said up until this point?
You see, at the end of the trial, one or both attorneys will ask the judge to give the jury a legal instruction about credibility.
It's an instruction that tells the jury that if they find a witness has testified falsely about one thing, they can, if they choose, disregard all of that witness' testimony as being unreliable and not credibile.
There is a latin phrase that is used in law here in NY for this legal instruction and it's called 'Falsus in Uno'.