Tuesday, July 12, 2011


A minor contretemps has broken out on the issue of whether or not a criminal trial is a search for the truth. Louie Jepeway is filing motions to remove signs from our courtrooms saying that we labour in court to seek the truth, and DOM posted part of an op-ed piece written by Professor Alan Dershowitz in the Wall Street Journal here. Professor Dershowitz argues in a nutshell that a criminal trial is about neither truth nor justice for the victim but merely an enterprise designed to answer one simple question- has the prosecution presented proof of the accused's guilt beyond a reasonable doubt?

Dershowitz writes:
That is why a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

Rumpole rumbles: au contraire good professor. Lets take a closer look before we pahrk that cahr in the Hahvard yahrd.

A criminal trial is a search for truth, just not necessarily for the ultimate truth. The problem with Dershowitz's argument is that he tosses truth out of court like some misbegotten rag doll, neither needed nor wanted. In light of the Casey Anthony verdict courts have a public relations problem, whether we like it or not. The last thing we want to do is rub the public's nose in our judicial process by thumbing our nose at truth.

It is true that a criminal trial is not a search for the ultimate truth: "did the defendant do it?"

By definition and grand tradition, a criminal trial is a decision only on whether the prosecution has presented proof of guilt beyond a reasonable doubt. But within that framework truth has an important place, indeed the most important place, in a criminal trial.

Did the witness tell the truth when s/he said s/he saw the defendant steal the car?
Did the witness tell the truth when s/he said s/he has no bias against the defendant?
Did the officer tell the truth when s/he said the defendant confessed?
Can we believe the officer when s/he said s/he did not trick the defendant into confessing or did not threaten the defendant or his family with more serious crimes?
Did the officer actually see the Defendant possess the drugs before they found the drugs on the floor of the car?
Do we believe the expert is indeed an expert in the field they say they are?
Did the lab technician competently perform the work they said they did?
Did the defendant's alibi witnesses tell the truth?
Did the defendant tell the truth when he said he acted in self defense?

At every stage of the trial the jury is constantly being required to evaluate testimony to determine what is the truth and whether a witnesses was mistaken or lied or was believable.

In Florida the jury is instructed among other things to consider whether the witness "was honest and straightforward in answering the attorneys questions?" In other words, "was the witness believable? Did the witness tell the truth?"

A criminal trial is and must be a search for the truth. The prosecutor has the job of seeking justice while the defense attorney has the obligation to challenge the evidence as he or she sees fit so that the jury can determine which evidence is believable, which evidence is not. From those dozens or sometimes hundreds of decisions an individual juror makes during a trial a decision is eventually reached- the prosecution did or did not present evidence in the form of witnesses and physical evidence that proved the accused's guilt beyond a reasonable doubt.

So Professor Dershowitz, we say you acted a bit too hasty in your defense of the American criminal justice system when you tossed truth out the door. Truth remains the anvil upon which evidence is hammered by one side or the other until a decision is reached.

Without truth there can be no verdict. Lest the good professor forget, "Verdict" is a word derived from two Latin words- "Veri'- meaning "truth" and "dicta"- meaning to speak.

When a jury renders a verdict, they speak the truth. So lets be careful before we toss truth out the door.

See You In Court.


Anonymous said...

"the defense attorney has the obligation to challenge the evidence as he or she sees fit"

Eh-- come on Rump, this can't be "true" either. Even defense lawyers have SOME rules to play by, right?

Anonymous said...

The Professor is absolutely correct. Your questions are not designed to get to the truth of the matter, but to cast reasonable doubt on the prosecution's case. "Reasonable doubt" is a far different animal than "the truth."

If trials were the search for the truth, then defendants should be forced to testify, or at the very least, their failure or refusal to testify should be able to be used against them.

Anonymous said...

Brillant Rumpole. We need you on the 3rd DCA.

The Professor (not Dersh) said...

Great post, Rump.

However, the "reasonable doubt" principle is basically the codification of Blackstone's Ratio: "Better that ten guilty men go free than one innocent suffer." Given, as you've admitted, that the reasonable doubt standard is the central facet of the American criminal justice system, and given that Blackstone's Ratio presupposes "right" results based on conclusions not based in truth (i.e. ten guilty men going free), isn't it fair to say that the system is not a search for truth?

Also, if the SYSTEM (because that's what we're talking about here -- the big picture, not the micro-level that your examples focus on) were a search for truth, wouldn't we apply the preponderance standard?

I hate to say it, but I think I agree with Dersh. (shudder).

Anonymous said...

You're wrong on two points, Rumpole. First, the "ultimate truth" isn't did the defendant do it, but more generally WHO did it, and WHY was it done.

Second, more generally, the jury does not have to decide ANY of the questions that you pose to reach a verdict. For example, the jury does not have to decide whether the witness told the truth when s/he said s/he saw the defendant steal the car. The jury may believe that that statement is "probably" the truth, or "likely" the truth, but still decide that it cannot conclude, beyond a reasonable doubt, that the statement is the truth.

Or, one more example, the jury does not have to decide whether the defendant's alibi witnesses told the truth. The jury may believe that those witnesses "possibly" told the truth, or "perhaps" told the truth, and decide based on those possibilities that the government did not prove its case beyond a reasonable doubt.

Sorry, Rumpole, much as I detest Prof. Dershowitz, on this one he's right.

Toosie fan club said...

Oh Twosie! Tootle loo! Can you give us a truthful review of something? And make it sublime darling. We love and miss you.

The boys of So be...

Anonymous said...

Rumpole - how about the basic tenet of a hearsay exception .... "Your Honor, we are not offering the testimony for the TRUTH of the matter asserted".


Anonymous said...

Luke you will find that Truth is a matter of perspective
Obi wan Kenobi

Your Truth, His/Her Truth, The State's Truth or the Defendant's Truth or the ULTIMATE Truth ....

Anonymous said...

Dershowitz is right on the money. If a criminal trial were a search for the truth, the prosecution would call the Defendant as a witness. There would be no exclusionary rule. Jurors would get to do their own investigations and report back to the jury room. In fact, a criminal trial is often more about not seeking the truth than otherwise. Kudos to Dershowitz.

Anonymous said...

Well put rumpy.

4813 said...

I like the idea of using "proven/not proven" versus "guilty/not guilty" - any reason why we aren't using that already?

Anonymous said...

Innocence vs Not Guilty. Innocent is not on the verdict form. Innocence is found at the Maternity Ward. They should call Barry Sheck's organization "The Not Guilty Project."

Anonymous said...

I think you are all a bit misguided here.

Truth means a variety of things, but in the context of the jury system what results is a consensus theory of truth. A small subset of people together decide that which becomes truth.

What occurs is they come to this consensus based upon the perceptions of the members of the group, which is formed often by relying on the perception of others, ie witnesses.

When we talk about truth in court, it is always in the context of motive, bias, mistake and the like. But what is "reality" is flexible, subjective. We evaluate the perceptions of the witnesses in the light of our own experience and our perceptions. Truth becomes what we make it. Other people's perceptions become true if they fit into our collective experience.

Mathematics deals in truth - absolute truth. That which can be proven and observed.


Perception can never be as absolute as a mathematical equation. In court we strive for truth, but we settle for something much less.

But perhaps the best way to sum it up is as the great philosopher George Costanza said, "remember, a lie isn't a lie if you believe it to be true."

Master Chief said...

For those of you so concerned about the "truth" signs in the court rooms, I would like to hear what suggestions you may have for a replacement slogan, if it were mandatory for there to be something posted?

I always like the phrase which said that better ten guilty men go free than one innocent man suffer a false conviction, or whatever it is. It captures the imperfection of the system.

How about "We can only do what we can do, given what we are given?"

Given the number of cases in Dade, and in the interests of brevity, I may also suggest, "Next!"

Would love to hear others suggestions- real or comical.

Anonymous said...

I like what you wrote, but wanted to add this thought. I think the ultimate goal of any trial is to uncover the truth. The restrictions around what can be presented to a jury are a compromise reflecting society's valuation of certain freedoms as greater than unfettered pursuit. Beyond a reasonable doubt is simply the standard which we have set to establish truth. This is in recognition of the fact that no one who wasn't present and involved can know the truth in any absolute fashion. That we allow a jury to believe someone guilty but find them otherwise is a not reflection on what is being pursued, but rather that we value justice more than retribution when we do not feel secure in a person's guilt. It is the court's, the attorneys' and the jury's job to work out whether there exists a reasonable doubt, but sad is the day when any of them pursue something other than the truth.

Anonymous said...

to quote a great sage

"All people know the same truth. Our lives consist of how we choose to distort it."

Rumpole said...

You can't possibly think I would post a comment in which you make fun of three crippled people, do you?

Anonymous said...

I'm not the one who tried to post something about cripples, or as we in the PC age call physically handicapped

But I did send in a post regarding the pending truth motion and ammendments to include other areas of the building.

If you don't post it, and don't mention it, does that mean it never got to you, or it just sucked so bad you refused to post it?

Not being accusatory, just curious.

George Frobisher said...

The jury assumes the lawyers know more about the facts of the case than they'll ever be allowed to learn (objections on evidence and sidebars and all); a trial therefore is a contest of which lawyer the jury believes is giving them the whole truth.


---How about a new sign then Mr. Rumpole ---

"Ties and jackets are optional in the summer"

"Lawyers will be taken out of turn to make your lives easier"

"No defendant will be punished for going to trial"

"Please don't run against me in the next election"

"I am state oriented - I am defense oriented - I am so confused as I haven't read a Law Weekly since 1989"

"Free parking validation in the attorney's lot for all law enforcement officers"

"Please see the Maitre'd for priority seats in the electric chair"

"$500 contributions will get you one continuance" (Woops, this one didn't seem to work for reelection)

"Preferential rulings to any attorney who takes me to Joe's for Jumbo Claws"

"If the legislature lowers my salary any more, I will personally valet park your car when you come for calendar call"

"Truth is optional"

"My name is Judge Jorge Friedman Cohen-Rodriguez and I am president of FAWL and CABA and I live in Aventura"

"Jury of your peers? - yea right!"

"2 million guilty verdicts served"

"Please give notice of your future ineffective assistance of counsel demand PRIOR to trial"

Anonymous said...

How about this truth:

Louis Jepeway is cuckoo for cocoa puffs and the fact that he has time to attack the signs hanging in the courtroom is about as important as attacking the carpeting.

Seriously Louie, do you want to be known in the REG bldg as a lawyer who provides top notch legal counsel for his clients? Or do you want to be known as the nutty lawyer serving as the sign police?

Thankfully, my practice is busy enough that I dont have to worry about signs in the courtroom.

Anonymous said...

At least "we who labor here seek only the truth" is better than what they had above the judge in the Casey Anthony trial: "In god we trust." Uggghh!

Shouldn't "In God we trust" be only on US money which, of course, is where Jesus would want it, right?

Anonymous said...

Master Chef
how about
Equal Justice Under Law

Master Chief said...


Equal Justice Under Law is also very good.

Just not very funny.

Master Chief.

Anonymous said...

It's obvious:

"We Who Labor Here Seek Only Justice"

Anonymous said...

Mater Chef
how about
You makes your choice and
you pays your ticket

Master Chief said...


If that is on the wall, then I am left with no other advice to give my clients. I prefer to save that gem for my consults.


Anonymous said...

I do not think Hesse was talking about traffic tickets in that metaphor,

Anonymous said...

New sign:

Ask me no questions and I'll tell you no lies.

Anonymous said...

The argument that a trial as practiced in the US justice system is a search for the truth is ridiculous, especially when the defendant is not required to testify. Take away the death penalty, use professionals to judge guilt, and require the defendant to testify - then you'll be much more likely to get close to the truth.