I have been eagerly awaiting today’s [June 15, 2009] South Carolina Supreme Court decision in McCrosson v. Tanenbaum, 383 S.C. 150, 679 S.E.2d 172 (2009). Not only was this one of the more notorious recent child custody cases in my county, but the Court of Appeals opinion 375 S.C. 225, 652 S.E.2d 73 (Ct.App. 2007) that the Supreme Court decided to review was a shocking outlier on one of the most important prerogatives that a family court judge has: making credibility determinations.
The are dozens of reported opinions with some variation on the language, “On appeal from the family court, this court has jurisdiction to find facts in accordance with its own view of the evidence” coupled to the language, “Because the appellate court lacks the opportunity for direct observation of the witnesses, it should give great deference to the Family Court’s findings where matters of credibility are involved.” Intelligent family court judges know that their decisions are much less likely to be overturned on appeal if they make credibility determinations an integral part of their factual findings, since such factual findings are less subject to appellate review.
What made the Court of Appeals opinion in McCrosson so noteworthy is not that it reversed the family court’s decision on custody but that it reversed the family court’s decision on custody largely because it found the family court had made incorrect credibility determinations. If the Supreme Court had sustained this decision, suddenly every family court order would be subject to greater chance of attack on appeal, as none of the family court’s factual findings would be entitled to much deference. Further, one thing the court system clearly relies upon family court judges to do–decide which testimony is credible and which is not–would be diminished in importance.
The Supreme Court’s (extremely short) opinion affirmed the Court of Appeals’ reversal on custody. The primary purpose of the Supreme Court’s opinion was to vacate the following one sentence from the Court of Appeals’ opinion:
While the family court is generally in the better position to determine a party’s credibility, where there are numerous confirmed instances of a party’s dishonesty, as there are here, we believe a reviewing court may have the advantage because it can consider the facts of a case without being distracted by an emotionally charged trial.
As the Supreme Court explained its reasoning:
Although we affirm the court of appeals’ decision on the merits, we vacate the sentence above because it improperly implies that the family court was “distracted by an emotionally charged trial” and could be read to alter the well-established standard of review applicable to an appellate court’s review of a family court’s child custody determination.
Thus, the great deference that family court judges’ credibility determinations are entitled to remains in effect.
However, our continued great reliance upon family court judges to decide credibility begs the question: If we are going to grant family court judges great deference in making credibility determinations, shouldn’t we give these judges training in modern methodologies of reliably determining credibility?
Recent scientific study into lie detection indicates that much of the conventional wisdom of how to detect lies is wrong. An excellent New Yorker article, “The Naked Face” (the inspiration for the Fox television show “Lie to Me”) by Malcolm Gladwell discusses these findings and shows how people can be trained to be better detectors of lies. It would seem that if we are going to allow family court judges to be the determiners of credibility, and going to allow important decisions regarding child custody and divorce to be decided based on these credibility determinations, it might be worthwhile to devote substantial resources into training judges to make accurate credibility determinations. Instead (it is my understanding) family court judges get no training on a most important facet of their job.
The South Carolina Supreme Court’s decision in McCrosson reestablishes (correctly I believe) the primacy of a family court judge’s credibility determinations. Too bad so little is being done to insure these determinations are accurate.
