He Said-She Said: On Credibility and the New Reason
The traditional wisdom in the field of evidence holds that, if there is a direct contradiction in the testimony of two witnesses, one of them must be lying. The jury is to discover which version is more credible. The traditional wisdom is wrong. This article uses an actual criminal case to establish that a direct contradiction in testimony can arise from another source - a fundamental difference of conceptual frame. In this case, both witnesses were telling the truth as they knew it, but were talking past one another. Words that were 100% true in the victim's conceptual frame were 100% false in the defendant's frame, and vice versa. The rules which governed the presentation of evidence in this trial were structurally incapable of even identifying this difference of conceptual frame, let alone managing it appropriately. One of several unacceptable results was that the defendant genuinely believed his victim lied on the stand and the system made a mistake in convicting him. The prosecution did not secure the public safety or do justice for all.
The rules of evidence used in this trial are similar to rules used all across the country. The type of conflict in testimony identified here could readily be found in all kinds of litigation, both civil and criminal, both state and federal. Existing rules are incapable of identifying and managing differences of conceptual frame because they are grounded in universal reason, a theory of reason which has become obsolete. To correct this situation, we need rules grounded in the New Reason. With such rules, the apparent conflict in testimony would disappear and litigation would produce significantly better results. Replacing the theory of reason used in law is a very large and important professional undertaking. It will require adjusting several existing professional practices, such as adding systems development to law school faculties.
Evidence | Jurisprudence | Law and Gender
Date of this Version
Nancy Rourke, "He Said-She Said: On Credibility and the New Reason" (March 28, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1203.