How do you Determine the Credibility of a Witness?

In divorce actions, especially those involving hotly contested custody issues or property and alimony issues, will likely produce conflicting evidence from the spouses.  For example, we recently had a case where the spouse was making all kinds of allegations that her husband was physically abusive to both her and their children, and the father swore that he has never laid a hand on anyone in his family.

The evidence was so contradictory that the wife claimed that her husband actually pointed a gun at her head and the gun accidentally discharged, shooting the bullet through the wall into the room where their children were sleeping.  The husband admitted that he had been cleaning his gun on one occasion and it accidentally discharged, but that nobody was in the home but him and the bullet hit the closet wall about 2 feet up from the floor.  The judge presiding over this hearing actually stopped the hearing and advised the attorneys to advise the clients that because one of the two are lying that they better understand the perjury laws in Utah, which can result in serious criminal penalties.  In spite of the admonition, neither parties admitted to lying or recanted their testimony.

In such situations like the example given above, how does the judge determine credibility, that is, how does he determine who he should believe when the evidence is completely opposite coming from each party.  The Utah Legislature has found it prudent to give judges some guidance on this issue.  As stated in Utah Code 78B-1-128 “The credibility of a witness may be questioned by:

(a) the manner in which the witness testifies;
(b) the character of the witness testimony;
(c) evidence affecting the witness’ character for truth, honesty, or integrity;
(d) the witness’ motives; or
(e) contradictory evidence.”

In cases like that described above, the judge is placed in a tight spot, even with the guiding principles above.  Sometimes there is simply no way to tell who is telling the truth.  For that reason it is extremely important that the attorneys on the case do as much research on the issues and evidence presented by the other party so that evidence can be brought forth to discredit the lying witness.  Evidence showing that the witness has a history of being dishonest or has a specific motive in presenting the testimony he is giving that day is important for the judge to have to make sure that the the lying witness is not believed.

You may be facing a case where your spouse is lying in order to gain an advantage over you.  Let us help you out.  Give us a call or email us anytime so we can go over your case with you and help you find ways to strengthen your case.

Jerry Salcido

About Jerry Salcido

Jerry Salcido is a founder attorney of St George Divorce Attorney PLLC.

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