[In-Depth Review] The Credibility of Testimonies and the Standards of Common Sense

"I cannot believe what you are saying."

It has already been several years since I first met A as a client. The government official in charge of A's refugee application interview said this after a brief meeting: "A's story is fake. How could such a thing happen in the living room while the children were sleeping in their rooms? It just doesn't make sense." However, A, whom I met, was not lying. A's statements were very consistent and detailed. Every time A spoke about the assault, A trembled all over and cried painfully. A’s body was damaged from the assault, but for months, A had not received proper treatment and was only taking painkillers and antibiotics. The common sense I grew up with in Korea and A’s common sense, coming from a country that takes dozens of hours by plane to reach, were inevitably different to say that "such a thing cannot happen."

The Ministry of Justice ultimately rejected A's refugee application. The reason for denial stated: "It is difficult to trust the applicant's statement." This is a phrase that many who were later recognized as refugees heard countless times during the refugee application process. A’s years of suffering are still ongoing. Another client, B, is a victim of sexual violence and has an intellectual disability. I have several memories related to B. The police sent B’s case to the prosecution with a recommendation for non-prosecution. The first thing I did after being appointed as B’s lawyer was to arrange a meeting with the prosecutor. At that time, the perpetrator claimed that the sexual intercourse was consensual. After listening to me for more than 30 minutes, the prosecutor said at the end of the meeting, "The perpetrator is really a bad guy. If the victim were not disabled, would this have happened like this?" The perpetrator knew that people would not believe the victim’s words, and that intention succeeded. At least the police sided with the perpetrator, and it seemed certain that the prosecution would reach the same conclusion if nothing was done.

After many twists and turns, the prosecution indicted the perpetrator, and B testified in court for the first time in their life. B seemed both nervous and not nervous, but had a firm belief that the perpetrator should be punished. B composed themselves and entered, but was somewhat surprised by the court’s more rigid and solemn atmosphere than expected. Flustered, B could not answer the judge’s and prosecutor’s questions as fully as they knew. B looked quite discouraged as they left after testifying. The presiding judge said that it might be necessary to evaluate the credibility of B’s testimony.

Credibility of testimony is a phrase that torments countless victims. Victims repeatedly testify, asking to be believed, digging up their pain and scratching their wounds. In the process, some statements may be incorrect, exaggerated, or different from previous ones. This could be due to injustice or changes in memory. However, those who evaluate the credibility of the testimony often easily find faults and reject the testimony’s credibility. "We cannot believe what you say. Therefore, we cannot acknowledge your victimization." Is there anything more painful than this?

I have often thought that lawyers are like interpreters who translate everyday language into the language of the law. A lawyer’s job is to persuade prosecutors, judges, or society to believe the client’s words. Since A is a refugee from a completely different background than our country, and B has an intellectual disability, it is difficult to even elicit their statements without putting in extra effort and care to listen to their voices. The words they struggle to express then hit another wall. Their words are judged by the common sense and experience of "ordinary people." Not all victims have ordinary experiences. Only with sufficient understanding and respect for socially vulnerable people can fairer judgments be possible.

Choi Chorok, Lawyer at the nonprofit organization Duru