I started a new thread so as not to hijack the Zimmerman one. In that thread Bricker et al asserted that simply by lying about a fact is not positive evidence that said fact is true. I agree with that contention, but need case law to back it up.
Changing facts to illustrate the point. In a case I am working on, we are trying to show that the driver of a car who rear-ended another car was talking on her cell phone. We have no evidence of this except: she denies owning a cell phone. She said that she is poor and cannot afford one. But the accident photographs show, in her car, a fucking cell phone plugged into the cigarette lighter.
Now, we want to argue that by her lying about owning a cell phone, the jury can infer that she was talking on it at the time of the accident (i.e. Why would she lie about even owning a cell phone? Because she was talking on it at the time and doesn’t want that known)
I told my supervising attorney that such an inference cannot be made by a jury and that the judge should deny the request as a matter of law. The supervising attorney wants a cite. So in keeping with the spirit of the SDMB, I say:
It seems to me that this amounts to arguing that the driver has a character trait of untruthfulness, using specific instances of conduct. Check out FRE 404, 405, 608 and any applicable state equivalents.
Do a document demand asking for cell phone records. Do investigation PI and get her friends to cough up her cell phone number. Ask the judge for an order subpoena her cell phone records from all the major carriers, the defendant should have no reason to oppose it.
But seriously, in civil litigation there is no discovery police and the judge won’t give a shit until you can prove (PI route) that there is in fact a cell phone and she is lying on her responses under oath. Does the case justify this high cost?
As for cite?, you are looking for a case that justifies drawing a conclusion from this lack of evidence contrary to the picture (which you should ask her about in deposition, and to name who the phone belongs to when she lies and says it is not hers). I’m not aware of such a case. If you find one, please post it here.
You will want to look at the standard jury instructions about a person who lies about one thing may (optional) not be trusted about other things. That will tend to have some cites to cases.
It will be difficult to find a case cite that directly answers that question, because finders of fact do not deliver individualized, particularized accounts of their fact-finding process. They are given instructions and then announce a verdict, presumably in accord with those instructions. So the best cite would be one in which the only factual evidence at trial would be an apparent lie by the accused, with the record devoid of any more substantive evidence of guilt.
It’s beyond cavil that the record must affirmatively reflect evidence of each element of the crime beyond a reasonable doubt. Thompson v. Louisville, 362 US 199 (1960), discusses a man who was arrested for loitering and disorderly conduct. The city’s evidence as to the loitering charge at trial was:
The city also presented evidence showing Thompson’s 54 prior arrests.
The charge under which Thompson was convicted reads:
Assuming the court disbelieved Thompson, was it then permitted to infer guilt as to any of those elements?
No:
In re-reading the OP, it may be asking about a civil case.
Then, I have no idea. A man should know his limitations.
I don’t know that it is necessary to make the argument explicitly. It may be enough to show her statement denying having a cell phone, and then show the jury the picture of the cell phone in her car. Something like “Defendant said she wasn’t talking on her cell phone, and that she doesn’t even have a cell phone. Here’s a picture taken at the scene of the accident that clearly shows a cell phone in her car…”
You may not get a jury instruction telling them what they can infer from the picture, but you probably won’t get one saying that they can’t make the inference you want, either…
If the person denies under oath that she owns a cell phone, couldn’t the photo of the cell phone be used to “impeach” her veracity on other statements? Or have I just watched too many episodes of Perry Mason in my youth?
The point he’s asking about is: as a matter of law, can a record that only shows that the defendant lied about having a cell phone support a jury’s inference that she has one and was using it at a time that creates liability for her?
Well, the jury can certainly infer she’s a liar across the board, yes. But that isn’t evidence of the cell phone use at the requisite time.
It’s similar to the chain wherein flight shows consciousness of guilt. The jury can typically use flight as evidence of general guilt, but flight alone doesn’t prove any of the substantive elements of the crime.
I know this isn’t what you asked, but cell phone companies have records of each and every phone call so whether she was on the phone or not can be proven without a doubt. Sometimes an innocent person can get themselves convicted by saying the slightest smallest thing that can get them wrongfully convicted.
Here’s the perfect explanation of why you should never talk to the police without benefit of counsel, especially if you are innocent:
I don’t think it matters, unless there is some quirk of state law that increases damages for cell phone use if otherwise liable for a car accident. Might also apply if there is a claim for punitive damages, I guess.
Assuming there is no special verdict requiring the jury to find whether or not the driver was on the phone, the verdict is going to be for Plaintiff or for Defendant. If the verdict is for Plaintiff, then there will be an award of damages.
The fact that this was a rear end collision already weighs heavily in favor of Plaintiff.
This. The defense has made a motion for partial summary judgment disallowing punitive damages as no reasonable juror could find that she was talking on a cell phone with the evidence we have. (We are treading into a new territory by asking a jury to say that the use of a cell phone while driving is reckless behavior. In the defendant’s deposition she admitted that cell phone use while driving would be reckless. If I was a juror, I would consider it possibly simple negligence, but certainly not to the level of recklessness. But others may disagree and we say it is for the jury to decide.)
But I’m with the majority here. If the jury decides, based upon the photograph, that she is lying, the most they can do is disbelieve her testimony entirely. And what we are left with is a picture of a cell phone and no proof that she was talking on it.
Any more details and I will probably identify the case if opposing attorneys do a google search.
Let’s assume that this discovery has failed. The question in my OP still stands. Can a jury make such an inference? I don’t think they can, but my supervising attorney is a bit of a dickhead and will demand a cite early tomorrow morning.
From reading the above, it’s not clear to me whether she was under oath when she denied owning a cell phone. Nor is it clear whether the cell phone in the car belonged to her. Was there a passenger?
There is a legal maxim Falsus in uno, falsus in omnibus (“false in one thing, false in all things”) by which a jury is permitted (but never required) to reject the whole of the testimony of a witness if they believe that the witness willfully lied under oath on a substantive point. As far as I can tell, it has never been applied to statements made other than under oath.
Well, then I’d lay out the chain of reasoning I suggested above, tweaking it as appropriate for a civil case. (“…must find each element of the tort by preponderance of the evidence…”) and see if that does the trick. But I agree with you: you lose as a matter of law on this unless there some some affirmative evidence that allows the jury to conclude she was on the phone.
