ANALYSIS : Panel’s ‘Swearing Contest’ Emerging as a Classic Battle for Credibility

As the hearings into Anita Faye Hill’s sexual harassment charges against Judge Clarence Thomas move into their third day, the nominee’s defenders are facing one of the most difficult tasks for any trial lawyer--attacking the credibility of an apparent victim.

The case that has been outlined before an audience of millions in the last two days of hearings has developed as a classic credibility battle, what lawyers refer to as a “swearing contest.” And in such contests, whether the decision-makers in a case are 14 U.S. senators or 12 ordinary people drawn at random from the community, one essential problem is the same: No one likes to believe that alleged victims are lying.

To try to get around that problem, Thomas’ defenders have adopted several tactics that would be familiar to experienced courtroom lawyers.

First, they have tried to paint Thomas as the real victim, shifting the sympathies of the jury--ultimately that’s what the Senate and the public are--away from his accuser and her accusations.

Secondly, they have tried to attack Hill’s credibility by attacking the process. That strategy is similar to the common attempt by criminal defense attorneys to put the prosecution on trial when they have little strong evidence of innocence to introduce themselves.

The third tactic has been to try to develop inconsistencies in Hill’s story, to argue, in effect, that if she can be shown to be lying about small things then she is likely to be lying about large things as well. That theory lay behind Sen. Arlen Specter’s attempt Saturday to argue that Hill had perjured herself in response to his questions about an article that appeared last week in USA Today.

That strategy is extremely difficult to employ even under the best of circumstances, as juries are often not greatly impressed by apparently minor discrepancies in a person’s testimony. And the strategy is far harder to employ here, where imprecise questions, the use of hearsay and the general lack of clear rules make proving perjury all but impossible.

Swearing contests are not unusual in legal cases. Trials on television may often be resolved by dramatic eyewitness testimony or previously secret documents that surface at the climactic moment. But in actual courtrooms, it is not at all uncommon for the key question before the jury to be simply: Who is lying? Such credibility battles are particularly common in cases of rape and sexual harassment, where the conduct involved almost inherently occurs in private.

The dilemma in this case, however, is particularly acute.

In the typical case, there is a substantial gap in status between the two chief witnesses in a trial. When the contest comes down to a question of credibility, jurors will tend to believe the witness who appears most like them or who they would like to be--the one who dresses better, whose language is more precise, whose habits appear more proper.

But in this case, the status of the two key players, Hill and Thomas, is virtually identical: both young black lawyers, graduates of Yale Law School, well-spoken middle class professionals.

Another factor making this swearing contest unusual is that one party must be lying. In many cases, the differing stories of the two chief witnesses can be resolved by discovering that one party or the other has made a mistake or has a faulty memory. As a general rule, trial counsel will work particularly hard to prove that the opposing witness is mistaken precisely in order to avoid the much harder task of proving that a person is lying.

In this case, the stories of Hill and Thomas are each so diametrically opposed, with Hill providing excruciating details and Thomas issuing categorical denials, that the argument of mistake cannot be made. The credibility issue cannot be avoided.

Finally, a factor bearing on credibility that has become central to the case is motive.

Thomas, of course, has a clear motive, one that the jury in this case--the senators and the millions of people watching the hearings on television--immediately can identify. If he is lying, he is doing so to save his reputation and his career.

In Hill’s case, a possible motive for lying is far harder to discern. As Sen. Patrick J. Leahy asked Thomas at one point Saturday: “Why would she come here and perjure herself?”

Given her long list of accomplishments, why would she “throw it all away. For what?”

In many cases, there is a clear potential motive. A lawyer defending a person in a rape case might try to show that the woman charging rape is a jilted former lover, for example, or a longtime personal enemy.

Lacking that sort of clear motive, Sen. Orrin G. Hatch and other defenders of Thomas have so far tried two tacks. The first, a largely unsuccessful attempt, centered on the affidavit introduced Friday from John N. Doggett III, who alleged essentially that Hill had fantasized a relationship between the two of them. The accusation, essentially, was that Hill was a psychopath suffering from some sort of erotomania that would cause her to make up sexual encounters with others.

But that attempt made little headway because it conflicted so directly with the evidence the jury could see of her appearance and demeanor. Even Specter, who was Hill’s chief interrogator, seemed uncomfortable, even embarrassed, by the affidavit and appeared to be trying to drop it quickly.

The second line, which the committee Republicans pursued Saturday, was to try to paint Thomas as the victim of a vast conspiracy in which unnamed outside groups used Hill as a dupe.

That argument has several advantages for Thomas’ defenders. First, it allows them to center their attack, not on Hill, but on the outside groups, which the members of the jury presumably already are inclined to dislike. Second, it allows them to play on the prospective jury’s racial sympathies by portraying Thomas as a hard-working conscientious black man under attack, not by a black woman, but by “slick” lawyers using Hill as a tool.

But with Hill’s credibility the main issue in the case, the focus now shifts to the character witnesses who are prepared to defend her. And for the increasingly weary and irritable senators, much more questioning remains to be done.