ANALYSIS : Corroborating Testimony Gains in Importance in Sex-Related Cases

Sunday’s testimony by friends of Anita Faye Hill and Clarence Thomas served several distinct purposes, each crucial to establishing the truth of Hill’s accusations of sexual harassment against the Supreme Court nominee.

Officially, Hill’s four friends appeared as what the law calls corroborating witnesses--people who can offer testimony that helps establish that the alleged conduct actually took place.

Each of the witnesses did, in fact, provide that sort of evidence. But at the same time they served as character witnesses for Hill.

Thomas’ witnesses, who appeared in the evening, were not in a position to add any new evidence to the case and could only play the limited role of attesting to his character.

Testimony about his character, however, could be extremely important in the case given that Thomas’ chief argument is that he is the sort of person who cannot possibly be imagined committing the offenses with which he is charged.

Hill’s friends also served as rebuttal witnesses who seriously undercut each of the possible motives that have been suggested as reasons why she might lie about Thomas. And they worked as expert witnesses on the subjects of sexual harassment and the job pressures which might cause a young, black, female attorney to keep working for a man who had harassed her, and to maintain professional contact with him.

Corroborating witnesses are a phenomenon peculiar to accusations of sex-related misconduct. In most civil and criminal cases, such testimony does not take place. Instead, attorneys seek to make their case either with written records, which the law considers as the best form of evidence, or with witnesses who can testify about their own direct experience.

But because sex-related offenses almost never involve either of those types of evidence, the testimony of third-party corroborating witnesses becomes more important. Indeed, until the massive changes that have revolutionized the law on sexual crimes in the last 10 years, a woman was not allowed even to go forward with a sex-related charge unless she could present some form of outside corroboration.

From a trial lawyer’s standpoint, the corroborating witnesses in this case were extraordinarily strong. Individually, each was an attractive figure--a law professor, an administrator, a judge and a partner at one of the country’s most prestigious law firms--stable professionals holding positions of trust in the community. They were the sort of witnesses a trial lawyer prays for but is seldom able to obtain.

Collectively, they were able to testify that Hill had told them of sexual harassment over a period of several years ranging from the period in which Hill and Thomas worked together at the Education Department, testified to by her friends Susan Hoerchner and Ellen Wells, on through the years that the two served together at the Equal Employment Opportunity Commission, testified to by John Carr, and extending to a time several years after she had left the EEOC when she spoke about the harassment to American University law professor Joel Paul.

That testimony severely undercut the notion that Hill knowingly has lied about Thomas’ conduct, allowing Hill’s advocates to argue to the senatorial jury that if one believes she is deliberately lying one must believe that she did so repeatedly over a period of several years at a time when the notion of Thomas being nominated for the Supreme Court had never been thought of.

The witnesses were not able to corroborate the details of the harassment that Hill alleges. And if Thomas had admitted asking Hill out on dates but had denied her more explicit charges, the lack of corroboration of the specifics might have greatly weakened Hill’s case. But Thomas, in his testimony, has presented essentially an all-or-nothing defense, one which Hill’s witnesses severely damaged.

Their testimony all but eliminated the main argument suggested by Thomas’ defenders Saturday--that Hill had concocted her story as part of a conspiracy by liberal interest groups to block the nomination.

Accepting the conspiracy argument now would require the jury to believe that the conspiracy also involved all four of these witnesses, people from different parts of the country with no known connection to each other or to any of the advocacy groups, people who testified that they had never met each other until this week.

As expert witnesses, the four also were able to bolster several potential weak points in Hill’s story on which senators had attacked her, discussing the reasons, for example, why a person in her position might not have made a formal complaint at the time, why she might not have kept written records and why she would have sought to maintain a professional relationship with Thomas. That testimony was particularly important because the committee had decided not to hear any statements from experts on sexual harassment who did not have a direct connection to the case.

Wells, for example, was able to testify about her own experience of sexual harassment and provided one of the single strongest pieces of testimony during the day when Sen. Alan K. Simpson (R-Wyo.) asked why a woman who had been harassed would stay in contact with her harasser.

“Being a black woman, you know you have to put up with a lot,” Wells said. “You grit your teeth and you do it.”

For Thomas’ defenders, that leaves only one remaining strong argument--one that they have raised at times in the past but have been reluctant to press: that Hill is in the grip of some sort of neurosis that has caused her to fantasize Thomas’ conduct.

It is in debating that accusation that the testimony by both sets of witnesses about the character of Hill and Thomas becomes particularly crucial. Hill’s witnesses testified about aspects of her character that appear to be inconsistent with a charge that she is fantasizing. Thomas’ witnesses, meanwhile, testified about aspects of his character that appear inconsistent with Hill’s accusation.

With the committee facing one more day of testimony, that leaves senators facing a crucial question: Who has the burden of proof in this case, and how shall it be resolved if, in the end, no irrefutable proof of either side’s contentions is produced.