May 8, 2012
I once left court with a client who stopped outside the courthouse, turned to me and asked, “Does everybody lie in court?” I’ve heard this question in some form or other countless times, mainly from people who are not yet acquainted with the legal system. It’s not an easy question for a trial attorney to answer honestly. People who have litigated a few cases stop asking the question, and settle into the realization that the inside of a courtroom is a sort of fantasy world, governed by its own set of rules, insulated from the outside world. The question about lying starts to lose its meaning.
Part of the problem, if we can call it that, is that a court is not, strictly speaking, seeking the truth. Trials are adversarial, not inquisitorial. Courts are set up to give people a place to fight, not a place to sit down and discuss their differences and located the true source of their problems. This adversarial system sets the tone for everything that happens in the courtroom. By the time a witness gets to trial, it has often become largely a meaningless question to ask whether she is telling the truth. The “truth” is simply not the point of her testimony, and not the point of the trial.
What lawyers often fight about in a trial are the rules of evidence. For the non-lawyer, these are rules that govern what a judge or jury will accept as evidence in a trial or hearing. Or, to phrase this point more accurately, these rules determine what is excluded from evidence. If evidence is excluded, then it simply will not exist for the judge or jury, however important it might be or how much truth there is in the evidence. It might be fair to say that a decision over which evidence is admitted in court is a decision about the truth that exists in the courtroom. Evidence, after all, is all a judge or jury has. Lawyers fight zealously to exclude evidence that harms their client, and to have helpful evidence admitted. They are, in a very real way, fighting over the truth that exists in the courtroom, trying to alter that truth in favor of their client. The result of this fight is the only “truth” the court has. For many people, this is an odd idea, this litigated truth.
Another problem – again, if we can call it a problem – is that even though witnesses are required to take an oath to tell the truth, their testimony is anything but free and open. They are, first of all, prepared for the trial by counsel. This means that the lawyer rehearses the questions and answers in advance. These answers, of course, are carefully chosen by the lawyer to best serve his client’s case. The answers are not “lies,” exactly, just careful. During the testimony, the witness’s testimony and the questions asked by her lawyer are subject to objection. These objections are followed by arguments over the rules of evidence, which sometimes take more time than the testimony itself. The entire process of examining a witness and arguing over her testimony can be so tedious and strained that often the “truth” has a hard time managing to escape the witness, and then does so only in fragments. These fragments of truth make their way into the courtroom, but they are often disjointed and out of order and incoherent to the point that juries and judges are left not knowing quite what picture to make out of them. I have heard judges complain that counsel did not give them the one piece of evidence they most urgently needed to decide the case, despite days of trial and reams of evidence. This is probably not lawyer error. The system of trying cases virtually guarantees that the evidence put on in court will be out of sync with the needs of the jury or any “fact-finder,” as juries and judges are called.
The term “fact-finder” is an odd one in this context. Juries and judges do not so much find facts as create them out of the chaos of evidence that manages to make its way into the courtroom. In order to have facts to find, a system needs evidence, and would presumably include as much evidence as possible. This, as I have said, is exactly what lawyers and judges do not do. Consider the candid remarks of Jerome Frank, in his aptly-titled book, Courts on Trial: Myth and Reality in American Justice. Judges, he tells us, are terrible at deciding what the facts are in a case. Frank was for years a federal judge charged with finding the truth in cases. Judges, he tells us, are simply unable to do it very well.
Yet another obstacle to truth is that every human being is self-interested, biased, and fundamentally unreliable. For instance, a criminal defendant is not required to testify, the logic being that the state must prove its case and the defendant has no burden to prove anything. But it is also understood that if the defendant does take the stand, he will be very, very motivated to lie to protect himself, and it is not fair to subject him to this choice. I remember hearing the story of a man accused of murder who took the witness stand and lied about committing the murder. The prosecutor asked him, “Do you know how long the jail sentence is for perjury?” to which the man answered, “Not as long as the sentence for murder.”