• by Tim Akpinar

Legal Perspective - Looking Closely at the Source of Witness Testimony

It’s unlikely that many people would recognize the name Mochitsura Hashimoto. He wasn’t a famous author, music artist, or film star. He was a Shinto priest. Some historians know who he was because of his role as a witness in a high-level legal proceeding. The proceeding was conducted against someone who had once been his opponent in a life or death struggle. Yet the testimony offered by Mr. Hashimoto bore no malice or hatred. In fact, his words would have even been considered helpful toward his former opponent. In terms of evidence, Mr. Hashimoto’s testimony would likely be characterized as “disinterested.” That doesn’t mean disinterested in the sense of being bored or annoyed about having to appear in court to testify. It means the person has no personal interest in being either unduly helpful or malicious toward the party about whom they’re speaking. It means they’re impartial. Therefore, there’s good reason to believe what they’re saying. The testimony is credible because such witnesses aren’t trying to protect friends or family members. They aren’t trying to settle a score with those who wronged them in the past. They aren’t out for money. For instance, if someone’s wife testifies, “Oh, right before we hit the other boat, my husband was at the helm and he was on his cell phone arguing with the contractor about the extension on our house.” That testimony would probably make a judge’s ears perk up because it’s damning to the husband, and it comes from someone who would be likely to protect his interests. Naturally, such testimony would be more compelling than the wife saying something along the lines of, “Oh, my husband told everyone in our boat to keep the noise down because he wanted nothing to distract him from keeping a sharp lookout for other boats as we passed under the drawbridge. That’s just the kind of prudent captain he is.” In this instance, the judge would probably be thinking, “Of course she’s going to say something like that.” This business of putting peoples’ testimony in the context of their interests or personal biases in any given legal proceeding is one of the more interesting aspects of litigation. An attorney must look at testimony in terms of who it’s coming from. Let’s make a course change here to briefly touch upon a recent historical development before we return to this subject. We’ll go to another place and time, namely the Pacific Theater during World War Two. Last summer, an expedition conducted by Paul Allen found the wreck of the U.S.S. Indianapolis. The Portland-class heavy cruiser was torpedoed on July 30, 1945 after delivering atomic bomb components to Tinian, part of the Mariana Island chain. The warship now rests in a location about 18,000 feet deep in one of the most remote stretches of water on the planet. The desolate spot where the Indianapolis sank in the Philippine Sea was far from landfall and any realistic prospects for a quick rescue. For the sailors who managed to get out from below decks and onto the fuel oil-soaked waters that dark night, the days ahead would hold in store an ordeal of hunger, thirst, merciless sun, and large sharks. In the aftermath of the loss, the Navy proceeded with a court-martial against the commanding officer of the Indianapolis, Captain Charles McVay III. Although Captain McVay became the focal point of accountability, many issues about the sinking trouble historians to this day, such as not providing anti-submarine protection for the cruiser and the manner in which rescue efforts were conducted, among others. Let’s return to the subject of looking at who it is doing the testifying on the witness stand in a legal proceeding. In the ensuing court-martial, a most unique witness was called. His name was Mochitsura Hashimoto, mentioned earlier. Before becoming a priest after the war, Mochitsura Hashimoto had served in the Imperial Japanese Navy. He was the commanding officer of the submarine I-58 on the night it fired a spread of six torpedoes at the U.S.S. Indianapolis. One of the issues raised in the court-martial was that the cruiser had not been taking the evasive measure of zig-zagging as it steamed toward Leyte, in the Philippines. Commander Hashimoto testified that it would have made no difference whether the Indianapolis had been zig-zagging that night. He would have been able to sink it anyway. (excerpted from Sec. 575 - Sense of Congress on the Court-Martial Conviction of Captain Charles Butler McVay, and on the Courageous Service of its Crew - page 221). Although Captain McVay was blamed for not zig-zagging, standing orders were that the measure was required in clear weather and at other times was at the commanding officer’s discretion. The use of Commander Hashimoto’s testimony was controversial at the time, but remains compelling to this day in terms of its credibility, as it came from a former adversary.

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