Recantation in Georgia Civil Litigation
When we speak of recantation it is generally in the context of a criminal case when a witness recants, or a victim of a crime recants, but rarely do we hear of recantation in civil litigation. In a recently litigated case involving false arrest of a former employee by a small local business I had an important Defense witness recant her first deposition ; the general manager of the company resigned from the companies employment months after the deposition, and reported that she had lied under pressure , and wanted to recant her prior testimony(1). Recantation is seen primarily in criminal cases by either an unwilling victim, or a witness who changes their testimony (2) (3), but it is difficult to find a case of recantation in Georgia in a civil matter.
In the underlying case the Plaintiff was employed at the Defendant’s business in the Call Center for five years, and was terminated in 2012 for erratic, and unprofessional behavior. Coincidental to the termination and within two weeks the business call center began to get “Harassing phone calls” from an unknown party. The employees and the assistant manager in the center was unsupervised, and untrained in contacting the police. The assistant manager was not told that one year before this incidence, another disgruntled employee had left the business, and made harassing phone calls and that the offender was arrested, and plead guilty.
In 2012 the new assistant manager got permission from the manager to contact the police; several employees believed the Plaintiff was making the calls because she had been recently fired. But, neither the manager nor the assistant manager checked the phone # of the caller. The Plaintiff was arrested, handcuffed, booked, spent the night in jail, and was prosecuted for over a year on misdemeanor charges until her defense attorney had the phone call traced to the prior employee who had plead guilty to making harassing phone calls. A civil suit for false arrest, false imprisonment, and punitive damages was filed. The Defense was that the arrest was not with the consent and approval of the management. Another key fact was that the manager hated the Plaintiff, and this established “willful” misconduct behalf of the Defendant which is an element of False Arrest.
Depositions of several Defense employees were taken including the owner, manager, and assistant manager who was no longer employed by D. The assistant manager testified that she was acting under the direction of the owner, and manager when she went to police to report the incident in accord with a previous affidavit that I had prepared. The assistant was shocked to find out that the company had a similar incident of harassing calls one year earlier, and that the phone # of the caller in 2012 was proven to be connected to the earlier caller. She recalled that the manager said she would “check the Plaintiff’s phone number “ in her employment records. The manager testified she did not recalling checking the phone #, but that the actions of the assistant were known to her, and the employees, but in her opinion the assistant manager was acting on her own behalf, and had a “grudge with the plaintiff.” The owner testified that he didn’t know about either incident of harassing phone calls, and that this matter was “a cat fight between the P and his assistant manager. “ The company denied that the arrest was done with their knowledge, and consent, yet emails produced after the deposition established that the manager and owner knew, and approved of the arrest.
Several months after resigning the Manager left a message on the office phone stating that, “ I no longer work at the company, I lied under oath, and I want to be re-deposed (4).” The deposition was rescheduled, and with the newly discovered emails to refresh the witnesses memory the manager recalled that the Plaintiff’s arrest was with the knowledge, and consent of the company, and owner; she swore that she was pressured to lie in her first deposition by the owner, and that she was scared of him.
Establishing the Truth
The object of all legal investigation is the discovery of the truth, OCGA 24-1-1. In cross examination a party is allowed a “thorough and sifting cross examination” to find the truth, 24-6-611. As practicing attorneys know many incidences do not have witnesses, and in civil cases arising out of an automobile wreck when a party is rear ended, there are factual disputes over many matters; Counsel must question the witness on every potential scenario; whether the plaintiff was at a full stop when the wreck occurred; whether the plaintiff caused the accident by slamming on break; along with the speed, and distance between the cars being disputed. When there are not skid marks, and other physical evidence available at the scene for an expert to make a determination of the causation, the attorney is left with discovery, and cross examination to find the truth. Counsel must be prepared to examine the witnesses and question the witness on every possible scenario as to what could have happened, and what did happen, their knowledge, and use of all the evidence, and documents that have been produced. In the false arrest matter I obtained an affidavit of the former assistant manager stating that she was working under the direction of the manager, and owner, which was denied in discovery responses, and requests to admit. The depositions were taken with the premise that the assistant manager was acting within the scope of her employment.
Use of the Evidence, and Repetition in Cross Examination
An effective cross examination of an uncooperative witnesses requires repetition, and rephrasing of questions.
- Repetition may be successful in getting the witness to change the prior answer. Stage your evidence using different pieces of evidence, and rephrase the question based on different pieces of evidence. In the False Arrest case I discovered the Manager’s personal Face Book post that showed her making derogatory comments about the company. She elaborated that the owner pressured her to lie, and the Face Book post was her way of her getting back. It was a series of things that caused the witness to recant: false answers that were repeated many times, her shock at discovering the harassing caller’s phone number was the prior employee’s, and the newly discovered emails.
- The Defendant’s denied that the assistant managers actions in the arrest were within the scope of her employment, and a series of questions revealed the truth: Did you authorize the assistant manager to go to the police? A: yes. Was she on the clock when she went? A: yes. You were aware that she went? And a copy of the police report was given to you, and you filed it in the Plaintiff’s personnel file? A: yes.
- The personnel file documents the company matters of the employee? A: YES.And you decided to file the police report in the Plaintiff’s file? A: Yes. You believe that the police report was a “company matter”? A: yes.
- No one admonished the assistant manager for going to the police? A: no. No one called the police and said that the manager was not making the report on behalf of the police? A: no. Were you aware that Ex. J, the owner’s letter that was ready to the employees on the hiring of the assistant states that “she is in charge of handling all matters in the call center”? A: yes. The harassing phone calls were made to the call center? A: yes. Isn’t it true that the actions of the assistant manager were not restricted? A: yes. After the manager agreed that the assistant was not restricted, and was authorized to go to the police it was not credible that the assistant was having a personal dispute with the Plaintiff.
- Get the witness to admit to a mistake that they made; In the first deposition the manager admitted that since the employees did not check the phone number of the harassing caller, and that since the Plaintiff had her criminal case dismissed because the phone number was traced to the former employee who had been arrested, it did appear that the company had the wrong person arrested. This coupled with the company’s pressure on manager to lie made her think about her testimony over and over, until one month later she decided to recant.
After the manager’s second deposition, and other discovery the case was successfully settled under a Confidentiality Agreement. Lawyer should obtain affidavits of key witnesses, and be prepared to thoroughly cross examine a witness with the assumption that they may not be inclined to tell the truth. If you are successful in exposing the witness’s inconsistencies you will prevail.
- The underlying case was settled under in a Confidentiality Agreement, and the names of the parties will not be used.
- Legal and Scientific Issues Surrounding Victim Recantation in Child Sexual Abuse Cases, Georgia State University Law Review: Vol 24: Iss. 3, Article 3 (2008).
- In Search of Truth: A Case for Expanding Perjury’s Recantation Defense, 100 W. Va. L Rev. 353 (1997).
- excerpt from managers recantation deposition with names redacted