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

Posted Sunday, December 5th, 2010 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

In part one of this blog I explained how an opposing party’s failure to call certain witnesses at trial could be considered as negatively impacting that party’s credibility.  Here I will describe the various methods and pitfalls for creating a court record that would allow a family court judge or appellate court to make these negative credibility determinations.

Unless counsel brings it to the trial court’s attention that the opposing party’s failure to call a particular witness to testify impacts that party’s credibility, it is highly doubtful that the trial court will make this connection, and it will be impossible to raise this issue on appeal.  Thus some method of documenting this failure needs to be undertaken at trial.  Unfortunately none of these methods are without risk, especially if it involves witnesses who attacked one’s client (as opposed to witnesses who would be expected to bolster the other side’s case).

Perhaps the easiest way to document this failure to call expected witnesses is in cross-examination of the opposing party in that party’s case-in-chief.  One would employ a series of leading questions such as:

“You’ve failed to call Witness A”

“Witness A could have corroborated your claim that…”

“You’ve failed to call Witness B”

“Witness B provided you an affidavit at the temporary hearing that [whatever the outrageous allegation that Witness B made that upset your client]”

“You’ve called no witnesses at trial who claims what Witness B claims”

For a number of reasons, this is an inferior method of establishing the point one wishes to establish.  First of all, that party could subsequently call (or at least attempt to call) these witnesses later in his or her case-in-chief.  Even when there’s been formal discovery and these witnesses have not been listed, the trial court might (though it probably wouldn’t) allow these witnesses to testify, as the opposing party might claim that he or she didn’t realize that his or her credibility would be attacked due to a failure to call these witnesses.  This “surprise” could provide a justification for calling unlisted witnesses to testify at trial.

Further, to use the example above, even if Witness B doesn’t testify regarding the outrageous allegations made in that witness’ affidavit, some subsequent witness might testify to these allegations.  By pointing out this fact in cross-examining the opposing party one might remind opposing counsel to obtain such testimony.  For these reasons, it’s better not to highlight a failure to call witnesses in the opposing party’s case-in-chief.

A better method would be to elicit such testimony by calling that party as a witness after that party has completed his or her case-in-chief: during the Defendant’s case-in-chief if the opposing party is the Plaintiff and during the Plaintiff’s reply if the opposing party is the Defendant.  Waiting until the opposing party has rested in his or her case-in-chief reduces, but doesn’t completely eliminate, some of the problems noted above.

In Federal Court this would probably be a good strategy; in South Carolina State Courts, not so much.  Two reasons for this.  First, Federal Rule of Evidence 611(b) limits cross-examination “to the subject matter of the direct examination and matters affecting the credibility of the witness.”  In contrast, South Carolina Rule of Evidence 611(b) states a “witness may be cross-examined on any matter relevant to any issue in the case.”  Second, the notes to Federal Rule of Evidence 611 indicate that opposing counsel should not be entitled to ask the opposing party leading questions in cross-examination of his or her client.  The notes to South Carolina Rule 611 don’t provide a similar limitation.

Thus, in calling the opposing party as a witness in South Carolina one opens the possibility that opposing counsel can reexamine his or her client on any matter through leading questions.  This is a situation to be avoided.

A good, but not perfect, option is to have one’s own client testify regarding the other party’s failure to call various witnesses after the other party has finished his or her case-in-chief (during the Defendant’s case-in-chief if the opposing party is the Plaintiff and during the Plaintiff’s reply if the opposing party is the Defendant).  One would ask one’s own client the questions noted above–and perhaps have one’s client describe how hurtful it was to read what was alleged in various affidavits submitted by the opposing party.

There are a few risks with this.  If one represents the Defendant, the Plaintiff could explain his or her failure to call these witnesses on reply, and perhaps even call the missing witnesses in reply.  This is a lesser concern if one represents the Plaintiff and is eliciting this testimony from one’s client in reply, as the court is very unlikely to allow the Defendant to call witnesses to respond to the Plaintiff’s reply.  Another risk is that it might remind opposing counsel to question one’s client regarding the offensive allegations in cross-examination with the hope of establishing the validity of these allegations.

A final risk is that the trial court would normally be unaware of these offensive allegations if the opposing party failed to raise them in his or her case-in-chief.  By having one’s client testify to being offended about these allegations, one makes the trial judge aware of these allegations.  While doubtful that the trial judge will use that information to one’s client’s detriment–if there’s no testimony to support the allegations the mere fact that allegations were made is unlikely to influence a judge–it may plan a seed of concern.

Conceivably one could question the guardian ad litem (at least in a custody case) regarding discussions the guardian may have had, or not had, with witnesses who provided damaging affidavits against one’s client but who failed to testify at trial. If the opposing party failed to ask the guardian to talk to such witnesses (or, even better, asked the guardian not to talk to these witnesses) or if the witnesses failed to raise these allegations with the guardian, the guardian’s testimony can highlight these facts.  One should not ask the guardian such questions unless one knows beforehand that the answers will be helpful.  The biggest risk of this approach is that the opposing party could now call these witnesses as reply to the guardian’s testimony.  While the trial court might limit such testimony to the issue of the guardian’s credibility, the trial court might not impose this limitation.  Also such testimony does make the trial judge aware of these allegations.

The final method of bringing to the trial judge’s attention the issue of the opposing party’s failure to call witnesses is through closing argument or a post-trial memorandum.  This method carries no risk that the opposing party can respond by eliciting testimony he or she failed to elicit at trial.   This method can be very effective for highlighting the other party’s failure to call witnesses who would be expected to corroborate that party’s claims.  It is not effective for initially noting an opposing party’s failure to call witnesses who provided uncredible affidavits at a temporary hearing, as no information about those affidavits would have been elicited at trial.

Handled correctly, as a method of attacking the opposing party’s credibility, there is minimal risk and much benefit in highlighting that party’s failure to call witnesses who might have been expected to corroborate essential elements of that’s party’s claim.  There are substantial risks in highlighting that same party’s use of incredible affidavits and then failing to call these witnesses.  Whether to accept these risks requires a careful balancing.  If it’s clear that these allegations were meritless and little risk that the witnesses making these allegations can testify credibly, highlighting them to attack the opposing party’s credibility might be justified.  Otherwise, it may be best to simply ignore them.

One thought on Noting a party’s failure to call witnesses to testify as an attack upon that party’s credibility (part two)

  1. Chief Justice Toal, Justice Pleicones, and I had Mr. Dreher for evidence and probably all three of us consider A Guide to Evidence Law in South Carolina by James F. Dreher (South Carolina Bar Association 1967) superior to the South Carolina Rules of Evidence; however, I cannot speak for the justices. Mr. Dreher states at page 71, “If a party fails to call a witness peculiarly available to him, an inference may be drawn that the witness would have testified unfavorably to that party.” In this modern era of frequent discovery and free-flowing subpoenas, the element of “peculiarly available” becomes problematic.

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