He Said / She Said (Legal Question)

Hi SD,

What generally happens when there’s a “He Said, She Said” type of case? I’m referring to cases where each person swears to a different version of events. Obviously, one person is lying, but assume the evidence is inconclusive or incomplete and does not implicate either the plaintiff or defendant? How often is evidence inconclusive–is the judge usually able to catch someone in a lie? Why would someone lie if they know perjury is going to compound their problems? I’m assuming the punishment for perjury is added to the punishment of a convicted person?

A related question: How do liars tend to react when confronted with proof that they are lying? Do they stick to their guns or call into question the validity of the evidence? Do they cry and apologize? Do they say they were framed? I may be watching a bit too much of Judge Judy, but I’m curious about whether liars would continue to protest their innocence even after they are clearly caught in a lie. If they do, are they hoping to save their dignity by accusing everyone else of convicting an innocent person?

Thanks for the insight.


You have to take a step back and start from some general principles. Different kinds of cases work very differently, but in every case somebody has gone to court in order to prove that something is true. It’s not common that the two sides will be in front of a judge and they’ll both be asking for the same thing in King Solomon style – usually one side or the other is trying to prove a case against the other side, so it’s an asymmetrical kind of process. So it matters a lot who “he” is and who “she” is in the he-said, she-said, because if you have the burden of proving your case, and the other side doesn’t, then you’re going to be the one to lose if the evidence isn’t conclusive.

If it’s a criminal case, the government is trying to prove somebody committed a crime, so they have the burden. If it’s a dispute between two parties in a civil case, like a Judge Judy kind of situation, the plaintiff is saying the defendant should have to pay some money or do something, so the plaintiff has the burden (of proving “they hit me with their car” or “they agreed to fix my drywall” or “they’ve been infringing on my land” or whatever it might be).

So, if you think about it that way, it becomes easy to see that when the evidence is totally inconclusive… nothing happens, because somebody had to prove something, and they didn’t. The person doesn’t go to jail, because it hasn’t been proven that they did the thing. And the defendant doesn’t have to pay any money or do whatever the plaintiff wanted Judge Judy to tell the defendant to do, because the evidence didn’t support it.

And it also follows that neither side or witness has to be proven to be lying. The judge or jury just determines what conclusion the evidence has adequately demonstrated, and that decides what happens.

The fact that there are two witnesses saying opposite things does not mean the evidence on each side is balanced. Assuming the two parties give directly contradictory testimony, the fact finder has the power to decide which one is more credible. The jury (or judge, in a bench trial) may decide that everyone one party says is a pack of lies (perhaps because it is inconsistent with the physical evidence, or logic and reason) but may decide that both are credible or that neither is credible.

As Jimmy notes, the effect of each scenario depends on the type of case and the relevant burden of production and proof.

Often I find when there is a dispute about facts between two people, the conflict is less often about an unidentified liar and more about the four realities involved.

  1. What He believes happened
  2. What She believes happened
  3. What actually happened
  4. What the evidence suggests actually happened.

Without video, you’re almost never going to know #3. Even evidence provided by eye witnesses is only marginally better than #1 & #2. Curiously, in the real world #4 steers the case less often than we’d like–too often cases are decided in favor of whomever the jury likes better between #1 and #2.

And of course, in a perfect world you’re innocent unless there is no reasonable doubt you are not; and if the plaintiff doesn’t prove his case, the defendant owes nothing.

In the UK, if two motorists collide and there are no witnesses, blame is usually shared. This is a common situation, and I saw a case in point this week, where *she *was reversing out of her drive at the same time as *he *was. Both parties claim that they were stationery at the time of the collision. There were no witnesses.

In this case it will be the insurance company that acts as judge and jury. At stake, is the uninsured losses (copay, hire car etc) and, the future premiums of the driver found to be at fault. In this case the insurer has, predictably, ruled 50/50. *She *has photographic evidence that *his *car hit *hers *in such a way that it had to be *him *moving and not her.

Since the sums of money involved are not huge, and the cost of going to court can be, there seems to be no mechanism for getting a fair judgement. This is causing much unhappiness.

I don’t think it is obvious at all that one person is lying. Whether it is a sexual consent issue, car accident, conversation, negotiation or just about anything else, each person has a different point of view. People observe and remember things differently, and each brings his or her own biases and history to the table. And then add in the inability to formulate and communicate exactly what you mean, and there are lots of times that nobody is willfully lying, even though there are two or more versions of what happened or what was believed to have been agreed upon.