The demeanor and memory of the witness while testifying are critical factors for the fact finder, whether judge or jury, to consider. Jury instructions guide the fact finder to consider the witness’s demeanor and memory. For instance, one state’s pattern instruction provides: 

        “You are the sole judges of the credibility of the witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness’s testimony, you may consider these things: . . . the quality of a witness’s memory while testifying; the manner of the witness while testifying. . . ” Washington Pattern Jury Instruction, Civil 1.02 (emphasis added)

        The cross-examination of Amber Heard’s expert witness by Johnny Depp’s lawyer in Depp’s defamation law suit provides an example of a witness who’s testimony was undermined by her inability to recall. Watch a little bit of it here: 

         It is incumbent upon the cross-examiner to watch the manner of the witness while testifying and note any signs of deception or evasion. Equally important is to pay close attention to how well the witness remembers some facts as opposed to others.  Then, in closing argument the cross-examiner can close the circle by pointing out the telltale signs to the jury or judge.

        A federal judge’ decision in granting a new trial provides a good illustration of how the manner and memory of a witness can influence the fact finder. U.S. District Judge Barbara Rothstein ordered a new trial after a jury had awarded $21.5 million to James Hausman. Hausman claimed that he suffered seizures after an automatic glass door on the Holland America Line cruise ship struck him in the head. See the video above.

  Judge Rothstein held a post-trial hearing after an assistant to Hausman stepped forward and said that Hausman had deleted emails that revealed inconsistencies in Hausman’s account. Judge Rothstein found the assistant’s testimony believable. And, she found that Hausman’s was not credible. Her findings reveal how she weighed Hausman’s manner and memory while testifying in assessing his credibility, as follows: 

        As a witness, he came across evasive and untrustworthy. He appeared to weigh each answer, not for its truthfulness, but to assess whether it would damage his case. Mr. Hausman also seemed to capitalize on his alleged brain injury when it was convenient for him. He was confused or claimed memory loss when confronted with a question or exhibit that appeared to undermine his claims, yet animated and full of information when his testimony supported his case.”