The Guesswork Involved In Deciding On The Truth – I

Sometimes Some Come In With An Advantage

One thing we know about our system of justice is that wrong decisions are made every day. This is because it is a human system which does not provide for certitude. We have people who don’t really know other people making judgments about them based on a minimal encounter. Even though my career was as a trial lawyer, I’ve always believed it quite unnerving to be brought before twelve people and a judge, or a judge alone, to whom you are a complete stranger and have them make a decision about you.  Even more so if it involves your freedom.

We have no system other than using other people to tell when a person lies or is telling the truth. Our system does not prevent a known liar from coming in and testifying. A person like Sally Slander may say a certain thing ten times and then can come back and testify to the opposite the next time. Someone like corrupt retired FBI Agent John Morris who testified as I’ve shown in my book Don’t Embarrass The Family that he lied over and over again, sometimes under oath, is allowed to testify in the same manner as someone who has never lied before.

Our system favors the glib over the taciturn. The former are used to talking  and can carry it off quite well in front of strangers. Herman Melville wrote about this in his novella Billy Budd.  Billy’s on a British ship-of-war and an officer, John Claggart takes a disliking to him. He accuses Billy of mutiny. When Billy is brought before the ship’s captain because of a speech impediment he can’t verbally defend himself so he’s doomed to walk the plank.

We favor the bold over the meek. Mafia enforcer Larry Baione could pass a lie detector test denying he committed certain crimes when the evidence was overwhelming that he did them. You’d much rather have a person who was a well dressed salesman as a witness than someone who shows up in working clothes coming from his construction job. Or as a prosecutor a defendant who shows up dressed like a gangster than one in a nice business suit.

Suppose you are driving home at night and go through an intersection on a green light and a person coming from your right runs the red light. You collide. She accuses you of running the light. There is no other evidence to show how the accident happened. She’s a very attractive woman in her late twenties; you’re a beat-up guy with a pot belly in his mid-fifties. It’ll be your word against hers. What are the odds the fact finder will make the right decision?

To somewhat remedy this, we have created steps in the amount of proof necessary for a person to arrive at a conclusion about whether something happened or not. You’ve heard the familiar refrain that something must be believed “beyond a reasonable doubt.” Some explain it by saying it means “to a moral certainty.” Both are difficult concepts to understand and each person has a different idea about it. It basically boils down to “you really, really have to believe it happened.”

Even within a criminal trial there are other standard that apply beyond reasonable doubt. When it comes to determining if a confession is voluntary, the US Supreme Court noted in the case of Lego v. Twomey that, “State courts . . .   have . . .  adopted a variety of standards, most of them founded upon state law. Many have sanctioned a standard of proof less strict than beyond a reasonable doubt, including proof of voluntariness by a preponderance of the evidence or to the satisfaction of the court or proof of voluntariness in fact.”

I’ll go on with this tomorrow but I’m asking you to keep in mind that when a fact finder like a judge decides what she believes, it may not necessarily be so. Unfortunately, even when it is false it becomes the truth. It then gains an unwarranted currency that can warp everything that follows.