Irreconcilable Differences? Handling Variations in Witness Testimony

You’re excited about your case. You think it’s a winner.

Then you interview witnesses.

There are some pretty obvious differences in their accounts. Uh oh. Some raise more questions than they answer.

What TO do?

Look for corroboration. That might come in the form of secondary witness support, i.e., something someone else said that matches other details of the first witness’s account (even if those details are different than the troublesome one). It might come in the form of other evidence such as video or documents.

Decide if the discrepancy even matters. Does it matter if one witness says the car was green while another says it was red? If they agree that the car drove through the intersection and hit a pedestrian on the sidewalk, but they disagree on the car color, so what?

Determine why the witness was wrong about that detail. Going back to the previous example, could one witness be color blind? Was there perhaps a different car on the scene that was the color they misidentified?

Assess the witness’s accuracy on known and established facts. If the witness appears to have other important details correct – especially ones that are more relevant to the larger question, then he is probably a reliable witness.

What NOT to do?

Panic. It’s ok. Discrepancies between witnesses are to be expected and candidly can be a sign your case is on the right track, not the wrong one. If the witnesses agreed in every detail with one another, THAT would be the time to panic.

Coach. Do not try to force your witnesses to change their stories or alter them in some way to match. Do NOT suggest that they are wrong and try to substitute your preferred version for their version that seems flawed to you. Not only is it unethical, it’s actually bad for your case.

Abandon the witness. In court, witnesses must be reliable, not perfect. Juries understand imperfection. If you believe the witness is being truthful, and their account “moves the chains” of your case, use them.

Many times in my career I put witnesses on in direct examination whose account or version of what happened differed with other witnesses. Defense lawyers loved to then argue, “if they were wrong about this, and they disagree with each other, you can’t trust ANYTHING they say.”

That’s a false conflict, and you must be ready to counter it. Reliable accounts of an event can often be incorrect about a specific detail for many reasons. Vantage point. Stress. Time. Etc.

I counter-argue: “Do you know what would be suspicious? If all witnesses agreed on every detail. That would suggest they were coached or they conspired to reconcile their stories. Authenticity can be found in discrepancies. These witnesses recounted what they saw. And they all agreed on the critical facts even if there are minor variations: the incident did indeed occur.”