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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  • Greg:

    While I understand your point, it seems the better approach and stronger argument is for the opposing party to call the witness whose affidavit they allege is not credible to trial to impeach with the witness’ affidavit. Your argument lacks validity because it ignores the right of the other party to subpoena those very witnesses (g-ps, older children, etc) to trial or to depose them beforehand so to put language into the order that the judge did not make and you extrapolate the negative applying it against the opposing party is wrong. If your argument were right, you should have made those witneses your own and call them as hostile witneses or leave that assumption out of an order claiming it is a finding of fact.

    • Melissa:

      I would never do what you suggest. Calling a witness you allege is uncredible to highlight that witness’s lack of credibility is about the most dangerous trial strategy I could imagine. Who knows what that witness will say at trial? Further the goal isn’t to impeach that witness, it’s to highlight the opposing party’s lack of credibility due to that party’s use of uncredible affidavits. There is substantial case law that failing to call witnesses a party should have been expected to call can be brought to the fact finder’s attention on the issue of credibility. See e.g., Baker v. Port City Steel Erectors, Inc., 261 S.C. 469, 475-76, 200 S.E.2d 681, 683 (1973)

      I can’t see anything good coming from what you suggest. Have you ever tried it? If so, how’d it work out?

  • Greg:
    I agree that my proposal is dangerous, and there are few situations where I might call those witnesses, but I can imagine there occasions where it would be appropriate.

    However, I disagree with your premise tha the drafting attorney should add that language to the order to strengthen the order when the finding was not made by the court but one the attorney wished the judge had made.

    It is problematic that few family court judges draft their own orders. I understand the their dockets are full and they are understaffed, but when the winning attorney drafts the order for the court and takes liberties with the findings of fact by adding language to strengthen the order when the court may not have made such a finding and even worse, when attorneys add facts to the order that were not made part of the record, the fox is inappropriately in the hen house.

    I much prefer when judges draft their own orders because they are the finder of fact and ruler of the law. Allowing an attorney to do the court’s work, in my opinion, takes the justice out of the justice system especially where the drafting attorney may “cure” an appealable problem yet the opposing side, who might have had the opportunity to appeal on an issue the court either failed to note or rule upon, loses their opportunity to be heard when the “winning” attorney further “argues” by adding language to the order. If an attorney follows your suggestion where it is not a finding made by the court, due process is violated.

    I agree that it a huge weakness for a party not to call a witness whose testimony affects the basis of their argument. As you suggest, not calling the g-ps when claiming they will help the parent raise the children is definitely a huge hole in their case. My beef is suggesting to attorneys to add language into an order to cement the other party’s inability to win on appeal is very different from when a judge makes that finding. I understood your tip to state that when a judge errs in not giving instructions that include language the winning attorney wishes the judge had made then it is ok for the winning attorney to fix this problem by drafting the order rather than winning on the strength of their case on appeal. In a bench trial, if a judge fails to properly rule, then one side should not be allowed to cure the problem the way you suggest. Unfortunately, too many attorneys take liberties when drafting orders, and I believe the orders, good or bad, should be limited to the judge’s instructions not the language the winning attorney wishes the judge included. So, my argument is really bigger than the credibility issue. My concerns are your suggestion that a problem with a trial judge’s ruling get cured by the drafting attorney adding finding of facts that were not made by the judge and by doing so, the other side does not have the opportunity to properly respond. I wish all family court judges drafted their own orders so attorneys did not take inappropriate liberties when given the opportunity to draft the order for the court.

    • Melissa:

      I am not suggesting that one add this language to the proposed order if it contradicts the directions of the trial judge. I am suggesting that one can only ask the trial judge to make such factual findings if one raises such issues and makes the record at trial. I am further suggesting that, on appeal, one can use this information to bolster or attack the family court judge’s credibility determinations, but only if there is evidence in the record that would support such credibility determinations.

      Finally, when a court’s memo ruling simply asks me to make factual findings to support the court’s ruling, I am going to make any credibility determination that the record would contain to support that ruling. If the trial judge doesn’t like one of these proposed credibility determinations he or she can remove it.

  • I question my own sanity when I voluntary take a position that disagrees with either Melissa or Greg and to disagree with both is absolutely nuts.

    However, instructions for an order are never complete; otherwise the instructions would be sufficient to file as the order. The drafting attorney must necessarily include findings of fact to support the conclusions of law. (Conclusions of law are what one gets when applying the law to the facts and are what comes after “it is therefore ordered.) Most instructions I receive from judges instruct me to include sufficient findings of fact to support the conclusions of law. Despite that instruction, I think there are some limits on my inclusion of specific, as opposed to general, findings of credibility.

    We should depose every witness who provides an affidavit, not for the purpose of impeaching the witness but to learn what they know and to limit their testimony at trial. If, in the process, we teach some lawyers not to come into court with dozens of frivilous affidavits saying that a son, a daughter, a brother, or a sister is a great, God-loving, Christian parent, then that is just an added benefit.

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