Sunday, July 10, 2011
No Logical Connection
I was all set to write some awesome post about the new revelations in the Dominic Strauss-Kahn case, and then Jaclyn Friedman beat me to it and did it better than I could ever reasonably could have. Check out her awesome column here.
Here's the part of it that I think hits hardest:
The newly revealed inconsistencies in her testimony raise more questions than answers. Did she launder money? Did she lie about a previous gang rape in order to gain asylum? What did she actually say about the case to her incarcerated friend on the day of the assault?
I'm wondering why so few people are asking the most important question of all: How does any of this prove that DSK didn't rape her? Emphasis mine
Here's the problem with this case, in my mind - it's the same problem I'm having in my evidence class this summer: credibility is a mostly broken concept, that allows us to make some truly ridiculous broken inferences. Here's the example I'm struggling to understand in law school right now. Under the federal rules of evidence, a lawyer can attack a witness's credibility in court by asking the witness about a prior conviction. This witness could be the defendant in the case, if he or she chooses to testify, but the rules are not limited to only defendants. Any witness who takes the stand in a case and provides testimony about it can be questioned about prior convictions for the purpose of reducing their credibility. We get to use the fancy term "impeaching the witness" in law school.
This doesn't make sense, though, if we sit and think about it for a few minutes. The chain of inferences we are making is something like this:
Witness committed a felon in the past -> clearly, by committing that felony, that witness has been willing to break rules before -> that witness was asked to follow a rule today in court (by taking an oath to tell the truth) -> that witness is, somehow, less likely to tell the truth simply by nature of being a felon, because he or she broke a rule in the past and got caught -> juries need to know that this witness broke the rules before, so they can downgrade/ignore the testimony the witness provides as appropriate.
It's that third step that doesn't quite make it there for me. It feels like we're making an inference that doesn't...catch. If a witness gets on the stand and talks about what he or she saw or experienced, the opposing attorney may bring in some examples of prior convictions to essentially make the witness look bad. There are other ways to impeach a witness that make more sense to me - an attorney can call into question a witness's eyesight, or memory, or actual knowledge of an event. Those make sense - a witness who can't see very well can't provide particularly believable testimony about what he or she saw. A witness who can't really remember what took place can't reasonably testify as to the sequence of events. But being a felon has nothing to do with eyesight, or memory. It has everything to do with how we view an ex-con's character, though.
We have decided that being an ex-felon automatically reduces a witness's credibility. What this really means is that we've decided as a culture that we don't have to listen to ex-felons. Regardless of how correct what they have to say may be, we find it culturally appropriate to discount it, off the bat, because we've decided they have some sort of glaring hole in their character that makes them more likely to lie, even for no reason, than someone who is not a felon. Credibility is the socially movable line that the majority gets to move around to whatever unattainable location it wants to set it, so it doesn't have to listen to anyone else.
We do the same thing to women, as we can see in this case. The accuser here has a shady past. She may have lied on some documents to get into the US. She may well have lied about some specific aspects of the events as they went down in this case. Why does that kick out the whole case? Why does that basically remove the possibility that any court would listen to her? Because the line for credibility in a sexual assault case is so far away from what real survivors live that no one can ever meet it. The accuser in this case has lost her credibility, despite having DNA evidence, tearing her clothes, etc. Despite having a whole bunch of other evidence, physical evidence, that doesn't have a whole lot to do with her credibility, no one will believe her anymore, because she's lost her 'credibility.'
If you can make more sense of this than I can, let me know, but here's what this story is asking me to infer: a woman with drug-dealing associates is more likely to lie about rape than someone without them. A woman who lied on her refugee application is more likely to lie about rape than one who didn't. A woman who is poor, who accuses a famous rich white man, is more likely to lie about rape than one who is his socio-economic equal. I'm not sure I buy any of those connections, at least not any more than I buy the idea that a felon is fundamentally, at his or her core, a liar forever.