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When a lay person testifies to what he or she has observed about an accident involving my client, I am sure to consider the following: the witness’ ability to perceive, tell the truth, remember, and narrate. These are the criteria that I was taught in evidence class thirty years ago and they are relevant today and probably have been relevant for hundreds of years in trial practice.
The four factors may seem interrelated. No doubt they are. Perception is the ability of a witness to see what they think they see. In this sense, perception isn’t always reality. Many people will attempt to describe events though they lack a vantage point ‘ literally ‘ from which to assess matters. Secondly, when a witness testifies, that individual takes an oath, as we all know. Regrettably, some people have biases which influence their testimony, even if they do not consciously set out to mislead. Third, the passage of time dims many a memory and, of course, depositions and trials take place many months, and usually many years, after the event causing the injury. Finally, the ability to describe what happened varies markedly with the skill of the witness. But by the way, after thirty years I have learned that this ability is not directly related to educational attainment either.
In assessing prospective witness testimony, a lawyer could do far worse than keeping these four factors in mind.
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