Monday, November 8, 2010

He Said ... She Said

He said, she said is a common way for laypeople to describe the majority of battery domestic violence cases.  Many defendants have the impression that they cannot be convicted in a case that is "he said, she said."  This is false.  Many criminal cases are based mostly or entirely on testimonial evidence, not readily apparent injuries or other corroborating evidence.  If the finder of fact (judge or jury) in a criminal case believes that the testimony is credible, then a defendant can be found guilty of a crime based on testimony alone.
Looking at jury instructions is a simple, straightforward way to review some legal concepts.  Instructions on testimonial evidence and the credibility of witnesses differ slightly from juridiction to jurisdiction, but they are all similar to this one.  "In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe.  You may believe all of what a witness said, or only part of it, or none of it.  In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence you believe."  Eighth Circuit CA Preliminary Jury Instruction 1.05.
This jury instruction takes into account corroborating evidence, but it is not necessarily a determining factor.  It is true that a case based on testimonial evidence is normally easier for a defense attorney to refute, but these cases can still be difficult to handle and a significant amount of work needs to be done to investigate and prepare in order to perform an adequate examination of a hostile witness.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit

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