Credibility determination in arbitration ppt

David W. Stiteler, Arbitrator

Who’s telling the truth, who’s lying, and who’s just confused?

The truth is that the truth is elusive.

There are many reasons for this that don’t have anything to do with whether a witness is telling the truth.

The goal of this presentation is to explore some of those reasons, and talk about how credibility issues are resolved.

Credibility Determination David W. Stiteler 10/9/2013

� Materials – Handout shows examples of credibility tests

� Definition of credibility: worthiness of belief; that quality in a witness which renders his evidence worthy of belief (Black’s Law Dictionary)


�David W. Stiteler, Arbitrator

� The first component of credibility is honesty or truthfulness

� This is what most people think of when they say a witness is not credible

� It is a polite way to say the witness is lying

� The second component of credibility is reliability or accuracy

� In my experience, this is the more important part of credibility


� The role of juries in determining credibility

� The role of self-interest in determining credibility


� In weighing the evidence, arbitrators are often faced with evaluating witness credibility

� First we’ll look at some tests used to evaluate credibility

� Next we’ll consider some common perceptions and misperceptions about credibility determination



� False statement

� Misperception/misunderstanding

� Bad memory

� Partially true, partially false

� Sanitized statement (mostly true but not the whole story)

� Truthful statement


� Statement by witness consistent or inconsistent with other known facts

� Extent of witness's opportunity to perceive any matter they testify about

� Extent of witness's opportunity to perceive, to recollect, or to communicated any matter they testify about

� Witness's admission of untruthfulness


� Prior statement from witness that is consistent with witness's testimony

� Prior statement from witness that is inconsistent with witness's testimony

� The factual context of the event for the witness

� Existence or nonexistence of bias or interest

� Statement by witness that is consistent/inconsistent with typical behavior

� Witness's reputation for honesty (or dishonesty)



� Witness's attitude toward the dispute or about having to testify

� Extent and type of witness preparation

� Witness's demeanor while testifying and the manner in which he testifies


Excerpted and adapted from “Assessing Credibility in Labor Arbitration,” Lareau and Sacks, 5 The Labor Lawyer 151 (1989)


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Is what you see what you get?


I could tell he was lying—his lips were moving!


� Appearance

� Tone of voice

� Eye contact

� Hesitancy

� Apparent sincerity

� Physical gestures

� Body language

� Relaxed or natural behavior

� Are any of these an objective measure of truthfulness?

� Typical arbitration witness may only be testifying for 30-45 minutes

� The experience of being a witness is unusual for most people


Do you get what you see?



� It is common for people who witness the same event to recall it differently.

� Errors of perception can lead to inaccurate testimony.

� Accuracy may be affected by how questions were asked.




� A lie betrays trust

� The lie that blends truth and falsehood

� The lie by misdirection


� A witness intending to speak the truth may nonetheless say something false.

� A witness intending to lie may nonetheless say something true.

� Eyewitness testimony is not particularly reliable; the witness may honestly believe his identification, but be mistaken.

� Lying is not just about speaking a falsehood; it is equally about withholding information to create a false impression.


� You can't judge credibility (believability) just on the character of the witness, who may believe his testimony but be mistaken.

� You can't judge credibility on what you think you know about the character of the witness, which may be wrong.

� To be considered credible, a statement must sound as though it makes sense, and must seem like it could be true.

� If a witness's key testimony is supported by documentary evidence, the fact that the witness may not have been truthful about other things is less important.



� On the other hand, if the witness's key testimony relies on something else and it turns out that the witness fudged about that, the testimony is unlikely to be credited.




Credibility determination in arbitration ppt

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