When a witness testifies falsely at trial there are generally only two reasons for such testimony: Either the witness is mistaken or a liar. These two types of witnesses should never be confused. It is clear that the motives of the mistaken witness are honorable. That witness understands the truth, respects the court and the system, and genuinely intends to tell the truth. The problem is that his facts are wrong. On the other hand, the motives of the liar are anything but honorable. He too understands the oath (but does not intend to follow it), has little or no respect for the system, and is willing to perpetrate a fraud for his own self interests.
A trial lawyer must consider how to attack these two types of witnesses. Too often, lawyers approach cross-examination of both the mistaken witness and the liar with a “one-size-fits-all” approach. This is a mistake. These two types of witnesses are completely distinct beings that think and act differently, and as a result, they must be approached differently on cross-examination.
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