Posted on
Share on Facebook
Share on X
Share on LinkedIn

By: Michael J. McConnell, Personal Injury Lawyer Serving NYC, Westchester, & Rockland

In any case – whether a personal injury lawsuit, a criminal prosecution, or anything in between – there are situations where it is one person’s word against another’s. This has historically been referred to as a “he-said, she-said” situation. One person says one thing happened, the other says something completely different. Who should we believe?

Are clients or victims doomed to lose their case without an independent witness backing them up? Or can they still win?

In this article, I will explain why it is still very much possible to build a strong and compelling case even without an independent witness. I will discuss some of the best legal strategies for overcoming the “he-said, she-said” dilemma to show that these cases can be won. Let’s dive in and see how it can be done.

Understanding the “He-Said, She-Said” Problem

As mentioned above, this is basically a situation where there are two conflicting accounts over what happened without an objective third-party witness to tell us who is telling the truth. It is a common situation in personal injury cases, criminal prosecutions, and more. Common examples may include: slip-and-fall accidents, car accidents, and sexual assaults.

For example, let’s say someone was injured in a car accident where there is a dispute over who caused the crash. Without an independent witness, it is going to be one driver’s account versus the other driver’s account.

The reason this creates a problem is that all cases have a “burden of proof” that must be met to convince the trier of fact (jury or judge) that you should win. So, for example, if you are suing someone for a car accident, you will generally have to prove by a “preponderance of the evidence” (meaning it is more likely than not) that the other driver’s negligence caused the accident. In a criminal case, the prosecutor needs to prove “beyond a reasonable doubt” that the crime occurred.

In both types of cases, there needs to be strong evidence to meet the burden of proof. All else being equal, it is usually a stronger case when there is a neutral and objective witness who can credibly testify about what really happened.

Yet just because a case with an independent eyewitness might be stronger, that doesn’t mean a case without one cannot still be strong and winnable. Let’s take a look at some of the ways to build a strong case without one.

Building a Strong Case Without an Independent Eyewitness

Proving a case without an independent eyewitness may have its difficulties, but there are a number of paths to winning. Utilizing the following types of evidence can be essential in persuading the jury that your version of events is the correct one.

The Battle Over Credibility: One Credible Account Might Be Enough

The simple truth is that most if not all cases ultimately come down to credibility. This is why that even in a “he-said, she-said” situation it might be possible to win even without much in terms of other evidence or witnesses. If a plaintiff testifies credibly and the defendant doesn’t, the jury might conclude that the plaintiff is telling the truth and thus decide the case in their favor.

How do you prove credibility or a lack thereof? You look to these factors:

  1. Consistency – Does the person remain consistent in their version of events? Or have they changed their story multiple times?
  2. Ability to Explain Key Details – A coherent, clear, and specific account may be considered more credible than one that lacks these things – at least with respect to key details. Nobody remembers every small fact, but there are certain things that jurors expect people to remember if they are telling the truth, so being able to recall those things with specificity can really help.
  3. Motive or Bias – What is the person’s motive to lie? Do they have any bias against the other party? Even if they might have a motive to lie or a bias, are there other facts that would make it highly unlikely that the motive or bias would make them want to go through the trouble of a lawsuit and testifying in court?
  4. Behavior After the Accident or Traumatic Event – Reporting something right away is often a helpful fact. With that said, there are good reasons to delay reporting. In either scenario – a quick report or a later one – the key is to show that the person’s actions were reasonable under the circumstances.
  5. Character, reputation, and integrity – If someone has a past record of dishonesty, including criminal acts, they might be less likely to be believed than someone without that. With that said, jurors understand that people make mistakes and can change, so sometimes being able to honestly acknowledge one’s past issues without being combative can make someone more relatable and credible in the eyes of a jury.
  6. Demeanor During Testimony – This is probably the most subjective but can often be the most important. The whole point of live testimony is so that jurors can evaluate demeanor. Does the person’s body language suggest they are telling the truth? Do they give straightforward answers? How do they respond to tough questions? Are they willing to admit difficult facts or do they try to cover them up? Are they needlessly combative when answering questions? Do they embellish? Are they overly dramatic? Do the answers seem too rehearsed?

If you come out more favorable on these factors than the other side, you might have a chance of winning your case even without an independent witness. The jury is essentially being asked to make a decision based on the evidence in front of them. If they believe that it is more likely than not that a plaintiff’s account was credible, they may accept that testimony and find in their favor.

This is really no different than how all of us make decisions – even very big ones – in our personal lives. If someone tells us something, we immediately begin making assessments of whether their information is accurate based on whether their story makes logical sense, whether this person has a history of being a credible source, and whether they might have a motive to fabricate.

Physical Evidence

In a case without a neutral eyewitness, physical evidence can be strong corroboration of your account. In fact, it can sometimes be even stronger proof that you are telling the truth than anything an eyewitness could ever say.

This is because sometimes eyewitnesses – even completely objective and neutral ones – might just be mistaken or confused about what they saw. Physical evidence is often looked at very favorably by a jury since it is an objective clue less susceptible to error.

Here are some examples:

  • Surveillance Footage – This can be of the actual event or taken at some other time that tends to corroborate a key fact. For example, in a robbery case where the defendant denies it was him, video of the defendant near the building at the time of the offense might lend some credibility to the victim’s account as to who the perpetrator was.
  • Photographs – Whether it is a picture of the injuries or the scene of an accident, a picture can be worth a thousand words. A photo that corroborates your account can be one of the most powerful pieces of evidence. 
  • Accident Reconstruction – In a car accident, for example, an expert can do a reconstruction to explain to the jury why you are right about what happened based on the position of the vehicles, the location of the accident, and other key facts.
  • Medical Records – They can help prove the cause and severity of the injuries as well as providing an account of what happened. Early medical reports in particular can make a huge difference since they might show that you were telling the same account from day one.

Circumstantial Evidence

Circumstantial evidence means evidence that doesn’t by itself directly prove something but tends to imply it through a series of logical conclusions. This can be really powerful evidence. In fact, many people mistakenly believe that circumstantial evidence is weak evidence. This is simply not true in a lot of cases.

For example, in a slip-and-fall case there might be a dispute as to whether the accident actually happened. If there is no surveillance footage of the accident or an eyewitness, how do you prove whether the plaintiff is telling the truth that they slipped and fell?

It would come down to the plaintiff’s credibility and circumstantial evidence. The plaintiff will testify how the accident occurred. Their lawyer might use circumstantial evidence like a photograph that shows a wet floor in the area they fell.

The photograph cannot by itself prove that the slip and fall occurred, but the fact that there was evidence of water on the floor in the area the plaintiff claims the accident occurred does increase the odds that a slip-and-fall accident could have occurred. After all, common sense tells us that wet floors can cause slip and falls. To prove that the accident occurred, it is thus helpful for the plaintiff to show that the floor was at least wet. If the floor was indeed wet, that makes it more believable they might have slipped.

Expert Testimony

In a “he-said, she-said” scenario, an expert can serve a number of purposes depending on the type of case.

In a car accident, for example, an accident reconstruction expert can help prove that the plaintiff’s version of events makes sense while the defendant’s version does not. Or a medical expert might be able to explain why certain “hidden or invisible injuries” like a concussion or traumatic brain injury were not reported immediately after the accident but rather at some later point in the weeks that followed.

In a sexual abuse lawsuit, an expert might be able to explain aspects of the psychological trauma. They might also be able to help the jury understand why the victim waited to report the crime. In essence, the expert will use their training and experience to assist the jury in understanding the reasonableness of the victim’s actions, which could help boost the victim’s credibility.

Conclusion

It is always great to have an independent and objective eyewitness who was in a good position to observe the incident in question. The problem is that people with serious injuries and trauma might not always have that available to them. Too often, people think that without an independent eyewitness they won’t have a strong case. That simply isn’t true and there are ways to still win even without one.

A diligent personal injury attorney can conduct a thorough investigation and help you build your case even when it seems like it is ultimately just your word against someone else’s. Don’t give up hope. With the right legal strategy, you can navigate the obstacles of the classic “he-said, she-said” situation to pursue the full justice and compensation that you deserve.

Michael J. McConnell is a New York personal injury attorney in Westchester County dedicated to helping people who have been seriously injured in New York City, Westchester County, and Rockland County. This includes:

If you are wondering whether you might have a case even though there isn’t an independent eyewitness or it is just your word against someone else’s, you are encouraged to give us a call for a free consultation where a compassionate attorney can help you explore your legal rights and whether you might have a stronger case than you think.

It doesn’t hurt to call. It is completely free. And it just might help you take the first step towards getting justice.

Attorney Advertising. Disclaimer: This website and its contents may be considered attorney advertising under the rules of certain jurisdictions. Prior results do not guarantee a similar outcome. The information and materials offered on this site, including any blog posts, are for general informational purposes only. They do not constitute and should not be considered to be legal advice. They are presented without any representation or warranty whatsoever, including as to the accuracy or completeness of the information. No one should, or is entitled to, rely in any manner on the information from this site. Parties seeking advice should consult with legal counsel familiar with their particular circumstances. Links within this website may lead to other websites, including those operated and maintained by third parties. Those links are included as a convenience to the reader and the presence of any link does not imply a responsibility for the linked site, an endorsement of that site, or its operator or contents. Contacting the Law Office of Michael J. McConnell does not automatically create an attorney-client relationship. Reproduction, distribution, or republication of the website’s content is prohibited without prior written permission, except for personal, non-commercial use.