Monday, March 15, 2010

Were you lying then? Are you lying now?

At trial, there is nothing more satisfying to a lawyer — other than hearing a favorable jury verdict being read out — than to listen to an opposing witness, especially if he’s pompous and self-assured, spin out his testimony when you know you have a prior inconsistent statement by that witness tucked away for cross examination. And especially when the witness is oblivious to the fact that you’ve got the inconsistent statement.

Mr. X, you testified that the light was green, isn’t that right?


Were there other bystanders at the intersection when the accident occurred?

Why, yes, there were.

And didn’t you exclaim, “Wow, that guy went right through a red light!”

Well, um.

One of the other bystanders is prepared to testify that’s exactly what you said.

Okay, I did say that.

But it directly contradicts what you’re saying in the courtroom today. You said then that the light was red. Now you say it was green.

Well, it was green.

Were you lying at the scene of the accident?

No, I —

So you must be lying now.

That a simple example from a hypothetical auto accident case. But the effect on the jury’s view of the witness is devastating.

Today’s example of the prior inconsistent statement comes not from the courtroom but from the world of politics, and it involves the Pawlenty administration talking out of both sides of its mouth. But the effect on credibility is the same as it is on the witness in the courtroom scenario above.

First, the direct testimony.

How many times have we be subjected to Governor Pawlenty’s harangue about the poor business climate we have in Minnesota? It is as numberless as the stars, and he uses it often to argue for lower business taxes. He did it in the State of the State message this year, too. He wants to cut the corporate income tax twenty percent.

Here’s the prior inconsistent statement:

Business Taxes

Lower than those in all but a handful of states, Minnesota’s business taxes are very competitive and give companies a distinct advantage when it comes to the costs of doing business.

When it comes to business taxes, we rank among the thirteen lowest-taxing states in the nation, according to a report by Ernst & Young and the Council on State Taxation, which assessed business taxes as a share of private sector gross state product for fiscal year 2008.

In fact, our favorable business tax provisions help put us in the top six states to do business, according to a CNBC report that found Minnesota’s overall costs of doing business lower than such states as Florida, New Jersey, and California.

Where the heck did that come from? It’s from the Department of Employment and Economic Development. It’s part of the Pawlenty administration.

So, Governor, were you lying then? Are you lying now?

A thump of the tail to a reader for the link.

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