Wake a judge or lawyer out of a sound sleep at three in the morning and ask “who makes credibility determinations in our judicial system?” Without hesitation or forethought, all will answer “jurors.” Yes, of course, there are bench trials, administrative hearings, and the like where the presiding judge or officer evaluates credibility, but it is a hallmark of our judicial system that where a jury is involved, the credibility of a witness is for the jurors, and jurors alone, to determine.

The U.S. Constitution's Seventh Amendment provides: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.” Article 1, §2 of the New York State Constitution enshrines the right to a jury: “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever …”

Lord Edward Coke wrote in 1628: “The most usual trial of matters of fact is by twelve such men; for ad quaestionem facti non respondent judices [judges do not answer a question of fact]; and matters in law the judges ought to decide and discuss; for ad quaestionem juris non respondent juratores [juries do not answer a question of law].” In 1931 in Herron v. Southern Pacific Co., Chief Justice Hughes wrote for the United States Supreme Court: “All of vital significance in trial by jury is that issues of fact be submitted for determination with such instructions and guidance by the court as will afford opportunity for that consideration by the jury which was secured by the rules governing trials at common law.”

Suffice it to say, the role of an empaneled jury as the finder of fact is bedrock legal principle in both state and federal courts. In its role as finder of fact, assessing a witness's credibility in order to determine the weight, if any, to give that witness's testimony, is an essential component for the jury to evaluate in determining the facts.

Civil Jury Instructions

The New York Pattern Jury Instructions-Civil contain a number of instructions explaining that fact finding is the sole province of the jury and guidance for jurors in evaluating credibility. Among the charges given prior to trial, PJI 1:6, 1:8, and 1:22 address these issues:

PJI 1:6. Function of Court and Jury

Your function as jurors is to decide what has or has not been proved and apply the rules of law that I give you to the facts as you find them to be. The decision you reach will be your verdict … You are the sole and exclusive judges of the facts and nothing I say or do should be taken by you as any indication of my opinion as to the facts. As to the facts, neither I nor anyone else may invade your province. I will preside impartially and not express any opinion concerning the facts. Any opinions of mine on the facts would, in any event, be totally irrelevant because the facts are for you to decide.

PJI 1:8. Weighing Testimony

In deciding what evidence you will accept you must make your own evaluation of the testimony given by each of the witnesses, and decide how much weight you choose to give to that testimony … There is no magical formula by which you evaluate testimony. You bring with you to this courtroom all of the experience and background of your lives. In your everyday affairs you decide for yourselves the reliability or unreliability of things people tell you. The same tests that you use in your everyday dealings are the tests which you apply in your deliberations … If it appears that there is a conflict in the evidence, you will have to consider whether the apparent conflict can be reconciled by fitting the different versions together. If, however, that is not possible, you will have to decide which of the conflicting versions you will accept.

PJI 1:22. Falsus in Uno

If you find that any witness has willfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

At the close of proof, PJI 1:37 (Jury Function) and 1:41 (Weighing Testimony) provide substantially the same guidance as their pre-trial counterparts.

Of particular importance, PJI 1:22-Falsus in Uno instructs that jurors are not required to reject all of the testimony of a witness where they determine that the witness has testified falsely about one or more facts.

Conflicting Trial Testimony

It is a fact that witnesses, from time to time, change their testimony. Where cases are tried, and then retried, a witness's testimony from one trial to the next may change, a phenomena acknowledged by the Court of Appeals in 1904 in Walters v. Syracuse R. T. R. Co.:

[I]t frequently happens that cases appear and reappear in this court, after three or four trials, where the plaintiff on every trial has changed his testimony in order to meet the varying fortunes of the case upon appeal. It often happens that his testimony upon the second trial is directly contrary to his testimony on the first trial …

The Walters court also acknowledged that it was often readily apparent to the trial and appellate courts that the changes in testimony were calculated to tailor the subsequent testimony to conform to prior court rulings:

[W]hen it is apparent that [the changed testimony was] done to meet the decision on appeal the temptation to hold that the second story was false is almost irresistible. Yet, in just such cases this court has held that the changes and contradictions in the plaintiff's testimony, the motives for the same and the truth of the last version is a matter for the consideration of the jury.

Finally, the Walters court allowed that there were narrow areas where a court could determine that testimony was false based upon scientific and common knowledge, but in all other situations it was not for the court to determine the truth of a witness's testimony:

It often happens that science and common knowledge may be invoked for the purposes of demonstrating that a particular statement in regard to some particular accident must be absolutely false; in such cases the question is for the court; but in cases of doubt we think it is wiser and better to remit such controversies to the proper tribunal for settling facts and ascertaining where the truth lies, rather than assume the power to determine the facts ourselves. This is an old rule, and while like all other rules it may work hardship or injustice in a particular case, it is wiser to adhere to it.

A case cited by the Walters court, Williams v. Delaware, L. & W. R., Co., saw the Court of Appeals reverse a trial court's dismissal of a plaintiff's case even though the court conceded the trial judge's decision not to credit the plaintiff's testimony was likely correct:

In this case the plaintiff gave testimony which, if credited by the jury, would have entitled him to a verdict. The trial judge apparently did not credit it, and it is quite likely that his view of the testimony was the correct one, but the difficulty with the situation is that, under our method of procedure, it was the province of the jury, not the court, to say whether his testimony was entitled to belief.

Although not cited since the 40s and 70s, respectively, these cases remain good law, and modern Court of Appeals cases reviewing conflicting trial testimony have not undermined the continued validity of their holdings. In 2006, in People v. Romero, the court's seminal decision on appellate review of weight of the evidence, the court explained: “Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor.”

In 2016, the Court of Appeals in Mazella v. Beals reiterated the core jury function in evaluating credibility: “It was then for the jury to decide the persuasiveness of this testimony … [the] jury is entitled to assess the credibility of witnesses and determine, for itself, what portion of their testimony to accept and the weight such testimony should be given,” citing its 1998 decision in People v. Negron, where the court reiterated “our long-standing recognition that a jury is entitled to assess the credibility of witnesses and determine, for itself, what portion of their testimony to accept and the weight such testimony should be given.”

Credibility Determinations on Summary Judgment

On summary judgment, the Court of Appeals has made clear that the same principles guiding credibility determinations at trial apply where a court is asked, pursuant to CPLR 3212(b), to determine as a matter of law, that “the cause of action or defense [is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” The statute mandates denial of a motion for summary judgment “if any party shall show facts sufficient to require a trial of any issue of fact.”

In 2012, the court, in Vega v. Restani Constr., reminded the bench and bar that “[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof).”

Conclusion

While Court of Appeals precedent counsels against judges making credibility determinations, in the summary judgment arena trial and appellate courts in New York appear to do just that, electing to disregard testimony deemed to be “tailored,” “feigned,” “patently false,” or “demonstrably false.”

This issue is framed by the recent 3-2 opinion in Carthen v. Sherman. In Carthen, the majority of the First Department, Justices Dianne Renwick, Troy Webber and Marcy Kahn, concluded:

[T]here are rare instances where credibility is properly determined as a matter of law … This Court is not “required to shut its eyes to the patent falsity of a [claim]” … we conclude that plaintiff's deposition testimony was demonstrably false and should be rejected as incredible as a matter of law, permitting summary judgment in favor of defendant.

In a memorandum decision authored by Justice Sallie Manzanet-Daniels, and joined by Presiding Justice Rolando Acosta, the dissenters advocated the traditional view:

It is not our job in evaluating a motion for summary judgment to adjudge the relative merits of the parties' cases, but merely to determine whether the parties have met their respective burdens. Plaintiff's testimony that defendant “cut us off” and “sideswiped” the car in which she was a passenger and “hit the rear,” in my view, suffices to raise a triable issue of fact warranting trial. The majority's assertion that plaintiff's testimony was “internally contradictory” entails a credibility determination we are not empowered to make … The contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve.

Carthen, and the line of cases upon which it stands, will be the subject of Part Two.

David Paul Horowitz is a member of McNamara & Horowitz in New York City, Lecturer at Law at Columbia Law School, and serves as a legal malpractice expert, private arbitrator, mediator, and discovery referee. He can be reached at [email protected]. Lukas M. Horowitz is a 2019 graduate of Albany Law School currently studying for the bar exam.