Admissibility of Testimony Concerning the Truthfulness or Untruthfulness of a Witness

• Publication year: 2006
• Pages: 37
• Citation: Vol. 35 No. 12 Pg. 37

35 Colo.Law. 37 Colorado Lawyer 2006.

2006, December, Pg. 37. Admissibility of Testimony Concerning the Truthfulness or Untruthfulness of a Witness

The Colorado Lawyer
December 2006
Vol. 35, No. 12 [Page 37]

Articles
Evidence
Admissibility of Testimony Concerning the Truthfulness or Untruthfulness of a Witness
by Rebecca Graves Payne

Evidence articles are presented in a hypothetical format, addressing legal issues of particular import to trial lawyers. Readers who are interested in submitting an article should contact the Article Editor.

Article Editor:

Lawrence M. Zavadil - (303) 389-4644 or lzavadil@jcfkk.com

About The Author:

Rebecca Graves Payne, Denver, is a contract attorney with Jacobs Chase Frick Kleinkopf & Kelley LLC, where she specializes in complex commercial litigation - (303) 389-4664, rpayne@jcfkk.com.

Q: May one witness (witness #1) be asked to testify whether she believes another witness (witness #2) lied or told the truth?

A: No, at least not concerning specific testimony provided by witness #2.

Assumed Facts

Cathy is arrested and accused of stealing and forging a check that belonged to Betty, her roommate, to buy two tickets to a U2 concert. Betty testifies that she kept her checks hidden and never gave Cathy permission to use her checks. She also testifies that Cathy recently complained she didn't have enough money to buy tickets for the U2 concert. Cathy testifies on direct that she and Betty had planned to go to the concert together; that Betty gave her the check to buy the tickets; and that, because Betty was in a rush, she told Cathy to sign her (Betty's) name on the check

On cross-examination, the prosecutor asks Cathy whether Betty was "mistaken" or "lying" about the check and the concert. Cathy's attorney objects to this question. How should the court rule

Discussion

As a result of the Colorado Supreme Court's decision in Liggett v. People,(fn1) asking a witness a direct question concerning whether another witness is either lying or telling the truth is "categorically improper" in Colorado. Liggett involved questioning a defendant about whether a witness who provided inconsistent testimony had lied, but the rule also is applicable when a lawyer seeks to bolster a witness's testimony by eliciting testimony from another witness that the first witness who testified told the truth

"Were they lying?" Questions

Oftentimes, a defendant's version of events is inconsistent with that relayed by another witness. In these situations, the prosecution may try to get the defendant to accuse the witness of lying - primarily to shed negative light on the defendant.(fn2) In Liggett, for example, the prosecutor asked the defendant if he thought a witness who gave a conflicting account of the events at issue was "mistaken" or "lying." Relying on the rule adopted by a majority of other jurisdictions, the court concluded these questions always are improper.(fn3)

The Liggett court reached the same result as the Court of Appeals, but rejected the lower court's holding that "Were they lying?" questions may be permissible in certain situations; that is, "when the only possible explanation for the inconsistent testimony is deceit or lying or when the defendant has opened the door by...