Five simple rules for judging Kavanaugh and his accusers

Five simple rules for judging Kavanaugh and his accusers
© Anna Moneymaker

The news cycle on the pending Brett KavanaughBrett Michael KavanaughThe case for reauthorizing VAWA Kamala Harris to keep seat on Judiciary Committee Planned Parenthood president 'deeply concerned' about Kavanaugh presence on Supreme Court MORE nomination is minute to minute. Despite the many moving parts, Kavanaugh has adamantly denied the accusations even as they continue to come in. Although some Senators have locked themselves into a position of either believing Kavanaugh or of believing his accusers, there are still some who want to see how the hearing plays out. For those open-minded Senators and for those of you who haven’t made up your mind yet, below are five simple guidelines to help you judge the credibility of the witnesses who testify.  

Does the witness impress you as one who was telling the truth?  This may be the most important instruction of the bunch even though it’s so general. So many people have formed opinions without having seen or heard from Kavanaugh or his accusers. Both sides are guilty of this prejudging. It should go without saying that it will be important to watch, listen, and evaluate the witnesses as they testify.

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Does the witness have any particular reason not to tell the truth or a personal interest in the outcome of the hearing?  Both sides will claim that the adversarial witness has a reason not to tell the truth and a personal interest in the outcome of the hearing. Kavanaugh, of course, has a stake in the hearing and wants to be confirmed. As for the accusers, many have said that they have no stake in the hearing and have come forward at great personal sacrifice. Christine Blasey Ford has explained the hardships on her and her family by coming forward, including death threats, which greatly outweigh any personal benefit she is receiving from testifying. Others argue that hers is a partisan attack. This is why live hearings are important as motive can be explored.

Does the witness seem to have a good memory?  Memory will be important as the events in question are so old. For example, Deborah Ramirez admits in the New Yorker article outlining her accusations that “she was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty.” It was only “[a]fter six days of carefully assessing her memories and consulting with her attorney” that Ramirez “felt confident enough of her recollections.” To be sure, if Ramirez testifies, Republicans will vigorously cross-examine her memory. So too with Ford, who admits that she does not remember all of the details of what she says happened.

Did the witness have the opportunity and ability to accurately observe the things he or she testified about?  Here, Republicans will question Ramirez about how much she had to drink and whether she can accurately say what really happened. As for Ford, Republicans will also question her about how much she had to drink at the party where she admits that everyone had at least one beer. Regarding Kavanaugh, there are reports that he was a heavy drinker in high school and college, and Ford says that he was “stumbling drunk” at the party.  Democrats are sure to question him about these claims.  

Does the witness’s testimony differ from other testimony or other evidence or did the witness give an inconsistent statement? Ford first told someone about the alleged attack in 2012. Does that version of the story match with what she is saying under oath? Has she told different versions of the story? If Mark Judge is called as a witness, will his recollection differ from Kavanaugh’s? Does Ramirez’s story or Ford’s have any corroboration? Of course, there are sometimes innocent lapses in memory and other times, intentional deception. Many times it is difficult to tell the difference, but one way is to see whether a particular misstatement is about an important fact or an unimportant detail.

These considerations, based on the same questions jurors are asked to answer during trial, apply only to witnesses who testify under oath at the hearing. Other witnesses who are not willing to so testify should not be considered. Of course, if one side does not permit a relevant witness to testify under oath, that should be considered as well. Letters and other statements (which are not under oath and which are not subject to questioning) should not be considered or given any weight. This applies to both sides as accusations and denials done on paper or in the media without being sworn to are worthless. It goes without saying that a statement by a witness’ lawyer also should not be given any weight unless the witness is denied the opportunity to testify.

For those out there who haven’t made up their mind about the accusations against Kavanaugh, the hearings will present an opportunity to judge the credibility of very different stories as jurors are asked to do every day in our country.  

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He previously worked at Williams & Connolly in Washington, D.C. and as an Assistant Federal Public Defender in Miami. He graduated magna cum laude from Harvard Law School. Follow him on Twitter @domarkus.