Noting a party’s failure to call witnesses to testify as an attack upon that party’s credibility (part one)

Friday I presented my lecture for the annual Family Court Bench Bar on How to Draft a Family Court Final Order that will get Sustained on Appeal.  A topic my lecture covered that was not in the lecture materials was various ways one can “pull” credibility findings from the trial record to include in the final order.  One type of credibility finding that I occasionally use, but otherwise rarely see made in these final orders, are findings that an unexplained failure to call a particular witness made the opposing party less credible.

The unfavorable inference arising from the failure of a party to call an available material witness may be drawn Only [sic] where under all the circumstances of the case, the failure to produce such witness creates suspicion of a wilful attempt to withhold competent evidence.  When the presumption is drawn, it cannot be treated as independent evidence of a fact otherwise unproved, but can only be considered in determining the credibility or probative force of the evidence presented… [T]he inference has the effect only of authorizing the jury to give greater weight to the evidence of the adverse party, or to give less weight to the evidence of the party who had failed to call the witness, than it might otherwise have done.

Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 475-76, 200 S.E.2d 681, 683 (1973) (citations omitted).

I provided a few examples that demonstrate this point.  For example, in a custody case, a parent may often testify to strong family support for his or her custody request.  Perhaps that parent expects to rely heavily upon his or her own parents to assist in raising the child.  Perhaps that parent has remarried and considers the new stepparent an integral part of the household.  In such cases, an unexplained failure to call these witnesses impacts that party’s credibility.  If her parents are such a strong support network, why aren’t they testifying?  If his new wife has led to greater stability in his life, and improved his ability to care for the children, why isn’t she in court explaining her support and the role she expects to play if her husband is awarded custody?

Another example is when a parent uses his or her track record as a parent of older children to obtain custody of younger children.  When the older child is not also the child of the opposing party, a failure to call such adult-child witnesses impacts that parent’s credibility.  In my first custody trial my client had raised a now-adult daughter as a single father.  Since we used his track record raising her to support his custody claim we called her as a witness to bolster her father’s claim for custody of her two much-younger half-siblings.  Years later I defended a custody modification case in which the opposing party used his experience as the custodial parent of an adult child, who still lived with him, to support his custody claim.  The final order, which I drafted, noted this father’s failure to have his son testify as a reason to discount his testimony regarding the excellent job he had done as a parent.

A final example, which I have yet to use in a final order, involves witnesses who provide scurrilous affidavits for a temporary hearing but then never appear at trial.  South Carolina’s evidentiary law used to hold that a party who called a witness vouched for that witness.  When South Carolina adopted formal rules of evidence in the 1990’s, Rule 607 allowed a party to impeach its own witnesses.

However, when one submits a witness affidavit for a temporary hearing, one is implicitly vouching for that witness.  If that affidavit contains material but hotly contested information and the issues addressed in that affidavit remain in dispute, failure to call that witness at trial creates a reasonable inference that the witness lacks the credibility to withstand the crucible of cross-examination.  This creates a further inference that the party submitting that affidavit knowingly provided the court testimony that lacked credibility (unless that party provides some reasonable explanation as to why that witness wasn’t called to testify).  Knowingly providing the court uncredible information is a reason to find a party not credible.

For every attorney or client whose been angered by such outrageous affidavits at the temporary hearing, making the other party’s failure to call these witnesses to trial into a basis to attack that party’s credibility is a satisfying method of using such affidavits against the submitting party at trial, and provides some justice for having withstood the injustice of these affidavits at a previous hearing.

In preparing for trial and trying a case a party and his or her attorney should think about the witnesses that the other party should be expected–almost required–to call to substantiate that party’s case.  Failure to call such witnesses can be made a credibility issue.  In part two, I will discuss the difficulties and options regarding getting this information into the court record so that it can be used in a final order or on appeal.

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