Not a week goes by in my contested criminal cases, that an accused states “how could anyone believe that woman.” Or, “the child’s testimony is so riddled with inconsistencies, how could any judge believe it.” “I can’t believe the judge won’t throw this out.”
I have great sympathy for my clients, but the law is designed to allow the jury the greatest latitude in determining the truth.
What the accused in these cases are pointing to is; When is someone’s testimony so inherently improbable that the court must throw it out completely?
State v. Barnes is a child molestation case where the sole evidence of molestation was the child’s testimony against Barne’s word. A classic situation. Barnes was convicted by a jury and challenged the child’s testimony on appeal as being “inherently improbable.” And therefore the appellate court reviewing the cold record should completely disregard the only testimony and throw the case out.
Here are some basic rules when an appellate court can completely disregard a person’s testimony as inherently improbable.
Exceedingly Rare. Testimony should be considered “inherently improbable” only if it runs so counter to human experience that it renders the testimony inappropriate for consideration in sustaining a finding of guilt.
Factors in Finding Inherently Improbable. Utah appellate courts have ruled that findings of inherently improbable are exceedingly rare. Although there is no exhaustive list of factors a reviewing court can consider, these are basic to the analysis:
(1). Material inconsistencies,
(2). Patent falsehoods, and
(3). Lack of corroborating evidence.
State v. Leon William Barnes, 2023 UT App 148.
State v. Jok, 2021 UT 35, ¶ 30
State v. Robbins, 2009 UT 23, 210
When you are in situation where there are many material and minor inconsistencies associated with a key witness’ testimony, hiring a persuasive trial lawyer is critical.
A jury trial is not the time for new attorneys or inexperience, especially when the stakes are high.
