Bias – Winning Cases When It Is All You Have

Sometimes you find yourself trying a tough criminal case where bias is all you have.  You know, one of those where many witnesses are going to testify as to things that hurt your case but after spending hours pouring over their testimony and other evidence in the case you find yourself unable to uncover any inconsistencies or contradictions to discredit their testimony.

In this kind of scenario it is easy to become pessimistic about your chances of victory but all is not lost if the witnesses are somehow connected to each other.  Are the witnesses neighbors? Are the witnesses friends, relatives, co-workers?  If they are connected in some way you can convince the jury that their testimony is not to be believed because the witnesses are biased.

bias

What is Bias?

Bias is defined as prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair.  Bias is the reason why your friends are more likely to nominate you for employee of the year than your enemies.  Bias is the reason why your friends are more likely to lie for you than to lie for strangers.  Bias is everywhere, and everyone knows it.

The Jury Understands Bias

Because bias is an everyday reality for people, it is not a concept that the trial lawyer needs to explain to the jury.  The jury knows that a person is likely to lie to protect his brother, or that a husband is likely to lie to protect his wife.  Bias occurs everywhere and takes many forms, and if you highlight the bias in your particular case, the jury will see it.

Using Bias To Win

To win a case where wining requires that you convince the jury that multiple related witnesses are lying you must find a strong motive for one witness to lie, and then highlight every other witness’ relationship to the witness who has a motive to lie.  For example consider the following scenario:

Imagine you are trying a burglary case where your client is caught by a man burglarizing the man’s home.  The man detains the burglar at gunpoint before calling the police. The man’s wife and his two daughters also will testify that they saw the man committing the burglary.

In this scenario you have four witnesses who have never met your client accusing him of burglary.  At first glance it does not look great for our hero, but what if we could turn those four witnesses into one witness?  And what if that one witness had a reason to lie?  That’s exactly what using bias lets us do.

Establish One Person’s Motive To Lie

In this scenario a viable theory of defense could be that the man who is the head of the household did not actually see your client committing a burglary when he held him at gunpoint, instead your client was trying to urinate in the bushes too close for comfort for the homeowner.  Under those circumstances the homeowner has pointed a gun at an innocent man and the police is on the way.  The home owner does not want to get arrested for committing that crime so he makes up a story, a story where our hero is a burglar and that’s why he had to point a gun at him.

Connect All Other Witnesses Through Bias

We have now established a strong motive to lie for one of the witnesses, we can now use the relationship of the remaining witnesses to convince the jury that they also should not be believed. You do this by starting each cross examination questioning the witnesses regarding their relationship to the head of the man who pointed the gun.  To get some ideas of how that’s done see bias cross examination.

Conclusion

Bias is a powerful human motivator.  Understanding bias and how to exploit it in your trail presentation can make the difference between winning and losing, specially in tough cases.

 

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  1. Pingback: Bias Cross Examination - Exposing a Witness - Trial Practice Tips

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