# Lying about X is not positive evidence that I did do X **URL:** \ **Category:** In My Humble Opinion\ **Created:** [September 7, 2013, 4:07pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255 "2013-09-07T16:07:31Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 7, 2013, 4:07pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/1 "2013-09-07T16:07:31Z")
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: Cite? 🙂 ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [September 7, 2013, 6:09pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/2 "2013-09-07T18:09:49Z")
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. ---
**Author:** ![Thudlow\_Boink](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thudlow_boink/32/320_2.png) [@Thudlow\_Boink](https://boards.straightdope.com/u/Thudlow_Boink)\ **Post date:** [September 7, 2013, 6:16pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/3 "2013-09-07T18:16:58Z")
This didn’t happen on one of those hypothetical islands where everyone’s either a Liar or a Truth-teller, did it? ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [September 7, 2013, 6:35pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/4 "2013-09-07T18:35:23Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2013, 6:37pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/5 "2013-09-07T18:37:29Z")
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: > [@](#): > > [Thompson], a long-time resident of the Louisville area, went into the Liberty End Cafe about 6:20 on Saturday evening, January 24, 1959. In addition to selling food the cafe was licensed to sell beer to the public and some 12 to 30 patrons were present during the time petitioner [Thompson] was there. When petitioner had been in the cafe about half an hour, two Louisville police officers came in on a “routine check.” Upon seeing petitioner “out there on the floor dancing by himself.” one of the officers, according to his testimony, went up to the manager who was sitting on a stool nearby and asked him how long petitioner had been in there and if he had bought anything. The officer testified that upon being told by the manager that petitioner had been there “a little over a half-hour and that he had not bought anything,” he accosted Thompson and “asked him what was his reason for being in there and he said he was waiting on a bus.” The officer then informed petitioner that he was under arrest and took him outside. This was the arrest for loitering. After going outside, the officer testified, petitioner “was very argumentative—he argued with us back and forth and so then we placed a disorderly conduct charge on him.” Admittedly the disorderly conduct conviction rests solely on this one sentence description of petitioner’s conduct after he left the cafe. The city also presented evidence showing Thompson’s 54 prior arrests. The charge under which Thompson was convicted reads: > [@](#): > > It shall be unlawful for any person . . . , without visible means of support, or who cannot give a satisfactory account of himself, . . . to sleep, lie, loaf, or trespass in or about any premises, building, or other structure in the City of Louisville, without first having obtained the consent of the owner or controller of said premises, structure, or building; . . . Assuming the court disbelieved Thompson, was it then permitted to infer guilt as to any of those elements? No: > [@](#): > > In addition to the fact that petitioner proved he had “visible means of support,” the prosecutor at trial said “This is a loitering charge here. There is no charge of no visible means of support.” Moreover, there is no suggestion that petitioner was sleeping, lying or trespassing in or about this cafe. Accordingly he could only have been convicted for being unable to give a satisfactory account of himself while loitering in the cafe, without the consent of the manager. Under the words of the ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law. The record is entirely lacking in evidence to support any of the charges. In re-reading the OP, it may be asking about a civil case. Then, I have no idea. A man should know his limitations. 🙂 ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [September 7, 2013, 6:46pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/6 "2013-09-07T18:46:19Z")
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… ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [September 7, 2013, 6:49pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/7 "2013-09-07T18:49:08Z")
All you have now is evidence that she’s a liar with a cell phone and no evidence of cell phone use. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [September 7, 2013, 8:11pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/8 "2013-09-07T20:11:18Z")
IANAL and all that, but… 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2013, 8:23pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/9 "2013-09-07T20:23:02Z")
> [@Oakminster](#): > > 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… 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? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2013, 8:24pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/10 "2013-09-07T20:24:58Z")
> [@Clothahump](#): > > IANAL and all that, but… > > 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? 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. ---
**Author:** ![twickster](https://avatars.discourse-cdn.com/v4/letter/t/ec9cab/32.png) [@twickster](https://boards.straightdope.com/u/twickster)\ **Post date:** [September 7, 2013, 9:56pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/11 "2013-09-07T21:56:38Z")
Moved MPSIMS --\> IMHO. No backs. ---
**Author:** ![LovesBeagles](https://avatars.discourse-cdn.com/v4/letter/l/ccd318/32.png) [@LovesBeagles](https://boards.straightdope.com/u/LovesBeagles)\ **Post date:** [September 7, 2013, 10:10pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/12 "2013-09-07T22:10:49Z")
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: [![]( " - YouTube") ](https://www.youtube.com/watch?v=6wXkI4t7nuc) ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [September 7, 2013, 11:33pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/13 "2013-09-07T23:33:35Z")
> [@Bricker](#): > > 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? 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 8, 2013, 2:47pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/14 "2013-09-08T14:47:35Z")
> [@Oakminster](#): > > Might also apply if there is a claim for punitive damages, I guess. 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. 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 8, 2013, 5:26pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/15 "2013-09-08T17:26:32Z")
> [@jtgain](#): > > And what we are left with is a picture of a cell phone and no proof that she was talking on it. Subpoena the phone records from her carrier, both text and voice, and ask for a digital copy of the phone itself in discovery. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 8, 2013, 11:40pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/16 "2013-09-08T23:40:42Z")
> [@Bricker](#): > > Subpoena the phone records from her carrier, both text and voice, and ask for a digital copy of the phone itself in discovery. 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. 🙂 ---
**Author:** ![bibliophage](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bibliophage/32/7615_2.png) [@bibliophage](https://boards.straightdope.com/u/bibliophage)\ **Post date:** [September 9, 2013, 12:52am UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/17 "2013-09-09T00:52:09Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 9, 2013, 12:53am UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/18 "2013-09-09T00:53:25Z")
> [@jtgain](#): > > 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. 🙂 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. ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [September 9, 2013, 4:13pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/19 "2013-09-09T16:13:27Z")
Have your senior attorney get her to deny being being a witch while he’s at it. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [September 9, 2013, 5:36pm UTC](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255/20 "2013-09-09T17:36:53Z")
> [@jtgain](#): > > 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: > > Cite? 🙂 In the Fourth Circuit? _U.S. v. Burgos_, 94 F.3d 849 (4th Cir. 1996): > [@](#): > > Although this [the Fourth] circuit has not squarely addressed the issue of what inferences are permissible from disbelief, we have (before today) indicated that the Government cannot prove its case by negative inferences based on demeanor evidence. See United States v. Fountain, 993 F.2d 1136, 1139 (4th Cir.1993) (“while [the defendant’s] evidence may be disbelieved, it contained nothing which, through disbelief, could be converted to positive proof of distribution of marijuana by him”). I would take this opportunity to adopt the longstanding view that demeanor evidence (i.e., evidence inferred from the assumption that the jury disbelieved the defendant’s testimony) does not allow us on appellate review to fill the evidentiary gaps in the Government’s case. See Dyer v. MacDougall, 201 F.2d 265 (2d Cir.1952) (Hand, J.). See generally Olin Guy Wellborn, III, Demeanor, 76 Cornell L.Rev. 1075, 1101-02 (1991) (“Hundreds of cases say … [m]ere disbelief of testimony is not proof of facts of an opposite nature or tendency.”). You’re on your own for W. Va. state courts, but I think this is pretty persuasive authority… [Next page](https://boards.straightdope.com/t/lying-about-x-is-not-positive-evidence-that-i-did-do-x/668255.md?page=2)