"Were They Lying?" Questions: A Practitioner's Look at the California Rule Versus the Federal Rule
by Jesse Gessin
The rule of sequestration results in parties often being the only witnesses to hear every other witness at trial. That makes them “super witnesses” who can testify about other witnesses’ testimony. It is tempting to ask the only all-knowing witness: “So, were they lying?”
In California, an attorney is permitted to pose a “were they lying question” to a party, putting California jurisprudence at odds with federal decisions from nearly every Circuit Court of Appeals. This article examines the difference in the two rules, the rationales behind that difference, and practice points for addressing “were they lying?” questions.
The Federal Rule
In federal courts, including the Ninth Circuit, “it is reversible error for a witness to testify over objection whether a previous witness was telling the truth. . . . It is the jurors’ responsibility to determine credibility by assessing the witnesses and witness testimony in light of their own experience.”[1] Prosecutors are often tempted to ask defendants if a law enforcement officer (or other witnesses) is lying. The First Circuit recently reiterated this bedrock rule while chastising prosecutors for asking “were they lying?” questions: “Over the past twenty-five years, this court has consistently held that counsel should not ask one witness to comment on the veracity of the testimony of another witness . . . We expect that the office of the United States Attorney . . . will abide by the rule.”[2]
There are many reasons for the federal rule. “Were they lying?” questions invade the province of the jury, constitute improper character evidence, put the testifying party in a no-win situation, ask questions about which the witness lacks personal knowledge, and are argumentative.[3]
The California Rule
On the flip side of the coin, California law, in narrow circumstances, nevertheless permits “were they lying?” questions. The issue was first recognized by a court of appeal in 2003 in People v. Foster.[4] The Foster decision discusses the three lines of jurisprudence respecting “were they lying?” questions. The first line of cases is from federal jurisprudence, and holds it is always improper to ask “were they lying?” questions. The second line of cases finds “were they lying?” examinations to be appropriate because they “merely emphasize the conflict in the evidence, which it was the jury’s duty to resolve.”[5] “A third line of cases holds that ‘were they lying’ questions are neither categorically improper nor categorically proper, but are appropriate under certain limited circumstances[,]” such as when “the only possible explanation” is a witness is lying, or when a witness opened the door, or when a “were they lying?” question is used to clarify “a particular line of testimony.”[6] The Foster court notes “there is no California authority establishing whether or not [‘were they lying?’] questions” are permitted, and declined to address the issue squarely.
In 2006, the California Supreme Court adopted the rule from the third line. In People v. Chatman, the court finds:
In sum, courts should carefully scrutinize “were they lying” questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness has personal knowledge that allows him or her to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.[7]
In fashioning this rule, the Chatman court eschews one of the key rationales for the federal rule, namely, witness credibility should be solely within the province of the jury. On this point, the court states:
It is a truism that it is for the jury to determine credibility. Questions that legitimately assist the jurors in discharging that obligation are proper. The legal cliché used by many courts, that evidence would invade the province or usurp the function of the jury is, as Dean Wigmore has said, so misleading, as well as so unsound, that it should be entirely repudiated. It is a mere bit of empty rhetoric, and remains simply one of those impracticable and misconceived utterances which lack any justification in principle.[8]
Another rationale for the federal rule is the bar on lay witness opinion testimony about the credibility of witnesses, which is black letter law in both federal and California codes.[9] The Chatman court split a thin reed by recognizing “a difference between asking a witness whether, in his opinion, another is lying and asking that witness whether he knows of a reason why another would be motivated to lie.”[10]
Considerations for Civil Cases
Chatman, like the majority of “were they lying?” question cases, is a prosecutorial misconduct case where the examination involved a prosecutor asking a defendant about a police officer’s credibility. In civil cases, the rationales cited in federal jurisprudence may justify banning or further restricting “were they lying?” questions.
There appear to be no published civil “were they lying?” decisions in California. The difference between civil and criminal is essential as there are differences between a criminal defendant taking the stand and a lay witness in a civil case. In light of constitutional protections, there is no right to call as a witness a criminal defendant. Once criminal defendants take the stand, they waive bedrock constitutional rights, and place themselves into the line of fire. The Chatman court reflects on this waiver:
The permissible scope of cross-examination of a defendant is generally broad. When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies.[11]
A civil litigant does not have the same protections, and any party may cross-examine the opposing party in their case-in-chief.[12]
There is also a special relationship between a criminal investigator and a criminal defendant; reminiscent of the classic scene from Heat where Al Pacino sits across from Robert DeNiro in a diner. Before exchanging the first word, the scene portrays the cat-and-mouse relationship by smokey stares of the two stars. Proving a crime beyond a reasonable doubt almost always requires the prosecution to establish a defendant’s mental state. The investigator is in a unique position to be able to put an entire narrative before the jury to show what was in a defendant’s mind when they committed the acts. There are very few instances where a party in a civil case is in the same position as a criminal investigator. These differences may be significant enough to justify cabining California’s rule to prosecutorial misconduct cases.
There are structural and evidentiary rationales against “were they lying?” questions (invade the province of the jury, constitute improper character evidence, put the testifying party in a no-win situation, ask questions about which the witness lacks personal knowledge, argumentative).[13]
Also, application, especially in the civil context, is difficult. “Were they lying?” questions rarely fit squarely within one of the narrow Chatman circumstances, yet witness credibility is an issue in every jury trial, and savvy practitioners will almost always be able to make a colorable argument for asking the question.
Practice Pointers
“Were they lying?” questions can be effective at bolstering another witness’ credibility, while at the same time casting doubt on the testifying witness. But practitioners must be cautious. There are several practice pointers to keep in mind when posing “were they lying” questions to a witness. Crafting the examination narrowly to fit within the limited circumstances of Chatman is a must. The questions should be concise and impactful. Attorneys need to prepare a ready response to an inevitable objection, and the best practice is to have a “pocket brief” on the law in the trial bag.
However, advocates should be cautious of asking witnesses “were they lying?” questions. Prosecutors risk misconduct and civil attorneys could run afoul of the jury. For example, in closing, an opposing counsel can also explain the catch-22 of a “were they lying?” examination, which only leaves two options for a witness: (1) take the high-road by not calling out the other witness, and thereby bolster that witness’ credibility; or (2) take the low-road by calling the other witness a liar, and thus appear unsavory before the jury. An opposing counsel could point to the pattern civil jury instruction on witness credibility[14] and paint the line of “were they lying?” questions as a sucker punch. Opposing counsel can then hit home that the jury should rely on themselves, not an interested witness, to determine who or who not to believe. For these reasons, counsel should tread carefully before posing “were they lying?” questions.
ENDNOTES
(1) United States v. Geston 299 F.3d 1130, 1136 (9th Cir. 2002).
(2) United States v. Pereira, 848 F.3d 17, 21 (1st Cir. 2017).
(3) Id. at 22, 29.
(4) See People v. Foster, 111 Cal. App. 4th 379, 383-84 (2003).
(5) Id. at 383.
(6) Id. at 385.
(7) People v. Chatman, 38 Cal. 4th 344, 384 (2006).
(8) Id. at 380.
(9) Federal Rule of Evidence § 701; California Rule of Evidence § 800; see also People v. Melton, 44 Cal. 3d 713, 744 (1988) (“Lay opinion about the veracity of particular statements by another is inadmissible on that issue.”).
(10) Chatman, 38 Cal. 4th at 381.
(11) Id. at 382.
(12) California Evidence Code § 776.
(13) Pereira, 848 F.3d at 22, 29.
(14) Judicial Council of California Civil Jury Instruction (CACI) No. 107.
Originally published in the The OC Lawyer