Wednesday, October 9, 2013 4pm - 5:30 pm Is the witness telling the truth, lying, or just confused? It has been said that "there is only one reliable guide to credibility, and that is that there are no reliable guides to credibility." This workshop will examine some of the myths about credibility determination in arbitration, and discuss tools that arbitrators use to help decide if a witness is credible.

1. David W. Stiteler Witness Credibility Page 1
DETERMINING WITNESS CREDIBILITY
Much has been written over the years about determining witness credibility. Various
tests have been suggested for, and by, judges, arbitrators, hearing officers, and other
finders of fact. In some cases, those tests have been incorporated into statute or policy.
Less formal versions appear in texts or articles. A few representative samples are set out
below.
Merit Systems Protection Board, Judges' Handbook
To resolve credibility issues, an administrative law judge must first identify the
factual questions in dispute; second, summarize all of the evidence on each disputed
question of fact; third, state which version he or she believes; and, fourth, explain in
detail why the chosen version was more credible than the other version or versions of
the event. Numerous factors, which will be considered in more detail below, must be
considered in making and explaining a credibility determination. These include: (1) The
witness's opportunity and capacity to observe the event or act in question; (2) the
witness's character; (3) any prior inconsistent statement by the witness; (4) a witness's
bias, or lack of bias; (5) the contradiction of the witness's version of events by other
evidence or its consistency with other evidence; (6) the inherent improbability of the
witness's version of events; and (7) the witness's demeanor. Hillen v. Department of the
Army, 35 M.S.P.R. 453 (1987).
Evidence in Arbitration, 2nd Ed., Hill and Sinicropi, 108–130 (BNA 1987)
In Chapter 8, the authors set out lists compiled by both the West Coast Area Tripartite
Committee and the Chicago Area Tripartite Committee. The former is essentially
identical to the list in the California Evidence Code. The latter is: "(1) manner and
demeanor; (2) character and reputation; (3) mental qualities of witness; (4) relative
experience; (5) emotional capacity; (6) opportunity of witness to observe; (7) self-
serving character of testimony; (8) interest or bias; (9) failure to call on corroborative
witnesses where available, as, for example, to support an alibi; (10) inconsistency–
contradiction–self-contradiction; (11) motivation; and (12) probability of testimony
under all the circumstances." Footnote 3 at 109.
The remainder of the chapter is divided into analyzing particular topics that are often
used to determine credibility: demeanor; character of testimony; perception, memory,
and communication; character for honesty and veracity; extrinsic act evidence; bias,

2. David W. Stiteler Witness Credibility Page 2
prejudice, interest, or corruption; consistency or inconsistency; admission of
untruthfulness or dishonesty; and corroborative testimony.
Modern Shamanism and Other Folderol – The Search for Certainty,
Arbitrator John Flagler, Arbitration 1986: Current and Expanding Roles,
Proceedings of the 39th Annual Meeting, National Academy of Arbitrators,
187, 195 (BNA 1987)
Arbitrator Jack Flagler created the chart below as a diagram to resolve credibility
disputes in cases with conflicting testimony from witnesses. In his words,
As you can see from Figure 1 the essential elements of any credibility
resolution reduce to the tellers and the tales. The credibility issue facing
the trier of fact requires that both the tellers and their tales be separately
considered as discrete parts of the problem. The testable questions thereby
become:
1. Of the competing witnesses, who is the more believable?
2. Of the conflicting versions, which is the more plausible?

3. David W. Stiteler Witness Credibility Page 3
Credibility questions
1. Did the witness have the opportunity to see and/or hear the incident about
which she testified?
2. Did the witness have the ability to recall the incident clearly and accurately?
3. Was the witness's testimony plausible (and thus more likely to be truthful)?
4. Was the witness's testimony consistent with other evidence?
5. Did the witness testify in a manner that reflected on her believability?
6. Does the witness's background (character, training, experience, etc.) affect her
believability?
7. Did the witness display a bias or hostility that affected her believability?
8. Did the witness have a motive to be untruthful? A fact-finder may consider both
the existence and the non-existence of a motive to lie in evaluating credibility.
Motives include receiving a benefit from testifying (e.g., pending lawsuit), or
having an interest in the outcome (e.g., the grievant).
9. Has the witness engaged in prior bad conduct, and if so, to what extent does that
fact harm the witness's believability?
10. Has the witness given prior statements that are inconsistent, either with each
other or with her testimony?
11. Has the witness testified to "facts" at hearing that she did not offer in earlier
statements when it would have logical and/or reasonable for her to have done so?