Every lawyer who has had any experience in litigation has had to prepare a client for a deposition, to be taken under oath. The thing about depositions is that the judge is not there to referee and keep the other side from getting into too much irrelevant and embarrassing stuff, so most lawyers take the opportunity to go hunting for any embarrassing or harmful material they can find about the witness while they are under oath.

As a lawyer, if you ever have to prepare a client who has some embarrassing stuff in their past (e.g. arrests, drug use), you always tell them, “Don’t worry about this stuff coming out at trial. It’s all irrelevant and we’ll get it excluded. The only way it becomes relevant is if you lie about it under oath. Then the other side can use it to show that you are the sort of person who would lie under oath, and therefore nothing you say can be trusted.”

I have always thought that Judge Sotomayor’s “wise Latina” comment, which she repeated on at least several occasions, was politically irrelevant. There was simply no way it was going to keep her off the bench, whatever it revealed about her biases and beliefs.

However, by now it has become obvious to almost everyone watching her confirmation hearings – including ardent Sotomayor supporter Maureen Dowd – that Judge Sotomayor is deliberately lying about her remarks under oath. And in so doing, Sotomayor has made the comments relevant.

I am mildly upset by the contents of the comment itself. I am appalled – as should be anyone who has ever had a law license – that a sitting Federal judge would deliberately lie about the comments under oath, especially since she didn’t even need to do so in order to be confirmed. The same question now presents itself concerning Judge Sotomayor as presents itself concerning every other witness who has lied under oath: why should any of their testimony be believed?

Consider, if you will, with Federal Civil Pattern Jury instructions. These are the instructions read to jurors before they decide a case. I can’t find the 2nd circuit online, but I’m sure it is very similar to the 11th Circuit’s pattern jury instructions. On the credibility of witnesses, the instructions to jurors is:

Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You should decide whether you believe what each witness had to say, and how important that testimony was. In making that decision you may believe or disbelieve any witness, in whole or in part. Also, the number of witnesses testifying concerning any particular dispute is not controlling.

In deciding whether you believe or do not believe any witness I suggest that you ask yourself a few questions: Did the witness impress you as one who was telling the truth? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness seem to have a good memory? Did the witness have the opportunity and ability to observe accurately the things he or she testified about? Did the witness appear to understand the questions clearly and answer them directly? Did the witness’ testimony differ from other testimony or other evidence?

In Judge Sotomayor’s case, it is pretty clear she has no credibility in her responses to the members of the Senate on this issue.

UPDATE: Here is more, from New York’s Pattern Jury Instruction number 1:22:

If you find that any witness has wilfully 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. 

 

New York couches this instruction as a “Falsus in Uno” instruction, but other similar “witness willfully false” instructions are very common in courts, and Judge Sotomayor is doubtless familiar with their use.