CHANGING YOUR STORY DOESN’T ALWAYS MAKE YOU A LIAR

For only the third time in American history (some say four), a United States president has faced public impeachment hearings in the House of Representatives. The process began with closed door depositions of various witnesses which were conducted under penalty of perjury.

Three weeks ago, many of those deposition transcripts were unclassified and released to the public. During the last two weeks,, public hearings were held, again conducted under penalty of perjury. Prior to the commencement of the public hearings, several witnesses, preeminent among them, Gordon Sonderland, United States Ambassador to the European Union, who had testified in private, submitted written changes to his previous sworn testimony. Former US Special Envoy to Ukraine, Kurt Volker, soon followed suit.

Gordon Sondland (L) and Kurt Volker

The talking heads had a field day. “They’ve ruined their credibility!” they exclaimed. Even long term, respected criminal prosecutors joined in the fray. But not so fast.

I practiced law for 35 years and during that time I conducted hundreds of depositions. Although I practiced civil not criminal law, unlike the federal prosecutors who have been espousing their views on national television, depositions are much more commonly utilized in civil practice than in criminal practice, I feel competent to express a differing opinion here.

First of all, what is sworn testimony? Sworn testimony is that which is offered under penalty of perjury. At the beginning of a deposition, the witness (or the person who is being deposed) is asked to raise his or her right hand and is issued the following oath by the court reporter, “Do you solemnly swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth?” Upon the receipt of an answer in the affirmative, the questioning of the witness begins.

At the very beginning of the process, I and virtually every other attorney I have engaged, lay down a few ground rules for the session. Simple things like:

  • Only one person speaks at a time so the court reporter gets an accurate transcript;
  • Don’t answer a question if you don’t understand it. I’ll be happy to explain or rephrase it;
  • If you answer a question I get to assume you understood the question; and, perhaps the most important one, and the one at play in the impeachment hearings:
  • At the end of the deposition, the reporter will prepare a written transcript containing my questions, your answers, your attorney’s objections, if any, and any discussions we have had on the record. You will have the opportunity to review the transcript of your deposition. You have the right to make written changes to any of your answers; however, if you make any substantive changes to your answers, I will have the right to comment on those changes at trial.

Now read that last bullet point again, “if you make any substantive changes to your answers, I will have the right to comment on those changes at trial.”

When a witness changes his or her testimony in a substantial way, it is common for counsel to remind the witness on the stand on trial, “Do you remember testifying at your deposition as follows (reads deposition)? Then after reviewing your transcript you changed your testimony to (reads changes). Today you testified that (reminds of testimony). So, tell me, Mr. Witness, were you lying then, or are you lying now?

Admittedly, when deponents (witnesses in depositions) change their testimony, it is generally to make them look better, not to make themselves look worse. Sondland didn’t do that. He substantially changed his testimony, not to make himself look better but in ways that made the case for impeachment stronger, and which could have opened Sondland to charges of lying to Congress in his closed door testimony. The same goes for Volker.

Sometimes there are legitimate reasons for changing your testimony. Sometimes witnesses’ memory is refreshed by something they hear or see (there’s even a legal term for it), or just something new comes to mind. Sometimes the changes spring from the need for self-preservation, like avoiding criminal charges or being charged with perjury.

But ask yourself: If someone changes their sworn testimony in a way that could expose them to charges of perjury, in ways that makes their “opponent’s” case stronger, does that make their testimony and the changes thereto, more or less reliable?

Think about it. Are Sondland and Volker less credible because their subsequent testimony in open hearings was more damaging to the administration? Republicans would have you think so, and they might be correct if a multitude of other witnesses didn’t corroborate their corrected testimony.

In reviewing these statements, look to their substance. Look at who has corroborated what they are saying. Look, as any juror must, at the totality of the evidence; everything has has been said, by every witness, before you make a judgment. Ask yourself: “Is what they are saying more likely true than not?” Or even, “Is there clear and convincing evidence that supports what they are saying?” Do you believe them? I do.

In case you were wondering . . .

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