Wednesday, October 03, 2007

Smearing a Witness versus Impeaching a Witness

The by-line to Prof. Anita Hill's NYTimes Op-Ed piece proclaims, "The Smear This Time."

Assume -- for the sake of argument -- that Prof. Anita Hill lied. Question 1: Granting that assumption, did Prof. Hill smear Justice Clarence Thomas by charging him with sexual misconduct? Question 2: Granting the same assumption, by mentioning matters that raise questions about Prof. Hill's credibility did Justice Thomas smear Prof. Hill?

In a typical trial the trier of fact is not afforded the privilege of being able to tell -- without having any evidence -- who is telling the truth and who isn't. Sometimes one way of figuring out which story is true and which story is false is by figuring out who is lying and who isn't. Sometimes one can better figure out if a witness is lying is by having evidence about what might lead a person to lie. Justice Thomas suggested some matters that might have led Prof. Hill to lie. It is of course possible that Justice Thomas lied. But it is also possible he didn't.

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