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Practice Points: The General Credibility Instruction: We Can Do Better

By Lisa J. Steele

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In any trial, the jury decides who and how much to believe. Its decision is sacred — appellate courts will not intercede in a credibility issue unless no reasonable juror could have believed a particular witness. In a criminal case, most, if not all, of the witnesses are prosecution witnesses. A jury’s decision that some of those witnesses are liars or just wrong may be the only defense that counsel can offer. This means that the credibility instruction is important. Do lawyers treat it as important?

The assumption has long been that credibility decisions are a natural, common-sense decision. Jurors are given one of several versions of a general credibility instruction that was developed by judicial experience and intuition. To counsel, they are often aural wallpaper — something the judge says in every case. Requests for special credibility instructions for eyewitnesses, accomplices, and jailhouse informants are not uncommon. However, lawyers rarely make requests t

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