Think of the widespread view that the Kavanaugh “sex
assault” hearing featured two people making “very believable” presentations –
and each sharply disputing the position of the other. Certainly, someone (maybe both) was not
telling the truth.
That doesn’t mean, necessarily, that one was a liar. There is a general misconception that a
person who says something that is untrue is a liar. But a person who believes something that is
false would seem as believable – credible – as someone who believes what is
actual truth. A liar, on the other hand,
knows that what he is saying is false; he does not believe it. For liars (certainly not all), their manner
betrays their insincerity (such as looking down, the tone of the voice, refusal
to look the listener in the eye, etc.).
The sincere person believes in what he is saying and so appears
truthful. But the reality is actually
only that the person genuinely believes what he is saying. Plainly, belief does not make an assertion
true.
So how does one differentiate behind the conflicting
accounts of two people, each of whom appears credible (but obviously one or
neither is)?
This is what judges and juries try to do every day.
In the mid-twentieth century, famed New York City trial
attorney Louis Nizer wrote an acclaimed memoir entitled My Life
in Court. In the book’s introduction,
Nizer advised readers that if they learn nothing else from reading the
collection of his noteworthy cases it should be this: in judging a person’s credibility ignore how he
testifies – focus instead on what he says.
Simply, does it make sense? If
so, he may be truthful, if not, he probably isn’t.
People tend to act in predictable ways. If a person claims that he acted in a way one
knows is unusual, skepticism is appropriate.
An extreme example:
A witness states that even though someone in a crowded theater where he
was present shouted fire and those around him were fleeing, he remained in his
seat. No matter how believable, how
creditable the witness seemed, it is highly unlikely that his account was
true.
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