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Assessing the Credibility of witness testimony in Uganda

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No witness enters the witness box with a certificate which guarantees his credibility. Every witness should be cross-examined upon the veracity or reliability of his evidence.[1] A credible witness is one whose testimony appears to be believable such that a court can conclude that the witness is most likely telling the truth. Credibility is assessed on the basis of consistency, reputation for honesty or untruthfulness, flawlessness or defects in perception, prior conduct or convictions that show dishonesty or untruthfulness, bias, prejudice, corroboration, neutrality, access or opportunity to obtain information or observe, conditions favoring identification, skills, experience and training, and motivations.

According to court in Peacock v R (2008) 190 A Crim R 454 at common law, evidence as to the credit of a witness (rather than as to his or her credibility) was admissible where its nature was such as to tend rationally and logically to weaken confidence in the veracity of the witness or in his trustworthiness as a witness of truth: See, Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 494.  Per the Supreme Court of the UK in R v Brown [1997]3 ALL ER 967 evidence as to the credibility of a witness is relevant and admissible.

In Uganda under section 154 of the evidence Act the credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him or her;

  1. By the evidence of persons who testify that they, from their knowledge of the witness, believe him or her to be unworthy of credit;
  2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his or her evidence;
  3. By proof of former statements inconsistent with any part of his or her evidence which is liable to be contradicted; or
  4. When a man is prosecuted for rape or an attempt to ravish, by evidence that the prosecutrix was of generally immoral character.

General considerations

According to Justice Mubiru in Ojera v Labeja HC Gulu, CIVIL APPEAL No. 0020 of 2013 the first requirement during assessment of the credibility of a witness is that his or her testimony must have logical consistency. The theory put forward by the witness must be persuasive and consistent with the evidence on record that is unimpeachable or admitted to be true.  Court must have regard to:

  • Any behavior which is designed or likely to conceal information, mislead, or obstruct or delay the determination of the suit, such as a hesitation or failure, without reasonable explanation, to answer a question asked. If the witness has adduced manifestly false evidence in support of his or her claim or has otherwise made false representations either orally or in writing, this will affect a credibility assessment.
  • Demonstrated inconsistencies or consistence with facts incontrovertibly established, such as contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, etc.
  • The demeanor of the witness while testifying in court. However, too much reliance on demeanor in court may be misleading. See, Ojera v Labeja HC Gulu, CIVIL APPEAL No. 0020 of 2013.

In assessing the credibility of a witness court must consider the following factors.

  1. Did the witness have an opportunity to see or hear the events about which he or she testified?
  2. Did the witness have the ability to recall those events accurately?
  3. Was the testimony of the witness plausible and likely to be true, or was it implausible and not likely to be true?
  4. Was the testimony of the witness consistent or inconsistent with other testimony or evidence in the case?
  5. Did the manner in which the witness testified reflect upon the truthfulness of that witness’s testimony?
  6. To what extent, if any, did the witness’s background, training, education, or experience affect the believability of that witness’s testimony?
  7. Did the witness have a conscious bias, hostility or some other attitude that affected the truthfulness of the witness’s testimony?
  8. Did the witness show an “unconscious bias,” that is, a bias that the witness may have even unknowingly acquired from stereotypes and attitudes about people or groups of people, and if so, did that unconscious bias impact that witness’s ability to be truthful and accurate.

The Motive of the Witness

Under Section 154 of the Evidence Act credibility can be impeached by evidence that the witness has been corrupted. According to Reagan v. United States, 157 U.S. 301, 310, the trial court “may, and sometimes ought, to remind the jury . . . that the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony”. In addition, Court can also have regard to evidence showing:

  1. Whether a witness had, or did not have, a motive to lie. If a witness had a motive to lie, you may consider whether and to what extent, if any, that motive affected the truthfulness of that witness’s testimony. If a witness did not have a motive to lie, you may consider that as well in evaluating the witness’s truthfulness.
  2. Whether a witness hopes for or expects to receive a benefit for testifying.  If so, you may consider whether and to what extent it affected the truthfulness of the witness’s testimony.[2]
  3. Whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. A defendant who testifies is a person who has an interest in the outcome of the case.You may, however, consider whether an interest in the outcome, or the lack of such interest, affected the truthfulness of the witness’s testimony.

The Previous Criminal Conduct of the witness

Under Section 154 (a) of the evidence Act evidence that tends to show that the witness is untrustworthy is relevant and admissible. The fact that a witness has previous convictions, especially for crimes which imply dishonesty or disrespect for the law, may be of great significance in regard to issues of credibility. R v Brown [1997]3 ALL ER 967. Court will look at past conduct of the witness that tends to show that the witness cannot be relied up to tell the truth. Court considers:

  1. Whether a witness has been convicted of a crime or has engaged in criminal conduct, and if so, whether and to what extent it affects your evaluation of the truthfulness of that witness’s testimony. Court is not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct, or to accept the testimony of a witness who has not.
  2. Whether a witness’s criminal conviction or conduct has affected the truthfulness of the witness’s testimony.

Inconsistent Statements and Contradictions

Inconsistencies and contradictions can affect the credibility of a witness. A good example of this is where an account is given by the witness of his or her recollection of events which contains within it contradictions or inconsistencies which cast doubt on his reliability. Another is where his account is contradicted by other witnesses, so that the issues of credibility and reliability have to be decided by assessing the weight of the evidence. R v Brown [1997]3 ALL ER 967. Court will also consider:

  1. Whether a witness made statements at this trial that are inconsistent with each other.
  2. Whether a witness made previous statements that are inconsistent with his or her testimony at trial. Court will have regard to whether a witness testified to a fact here at trial that the witness omitted to state, at a prior time, when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, court may consider whether the witness’ attention was called to the matter and whether the witness was specifically asked about it.

Consistency.

Court will consider whether a witness’s testimony is consistent with the testimony of other witnesses or with other evidence in the case. If there were inconsistencies by or among witnesses, court may consider whether they were significant inconsistencies related to important facts, or instead were the kind of minor inconsistencies that one might expect from multiple witnesses to the same event?

[1] R v Brown [1997]3 ALL ER 967

[2] Caldwell v Cablevision Sys. Corp., 20 NY3d 365, 372 (2013), holding as follows: “Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony

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