A commitment to truth

We keep hearing about fake news and fake history and fake facts. About alternative truth and post-truth. That truth is in the eye of the beholder, a subjective impression of reality, an illusion of the mind. A few months ago, Time magazine’s cover posed the question, “Is Truth Dead?”

I suggest that this assault on the very concept of truth is also an assault on our legal system which, by design, aims at revealing truth.

Trials involve a rational pursuit of truth, which resides in the facts. We follow rules of evidence, rules of procedure, and rules of professional conduct and swear witnesses to tell nothing but the truth, all for the singular purpose of ascertaining the true facts of what happened. As a federal appellate panel has noted, “Our adversary system depends on a most jealous safeguarding of truth and candor.” Now take a step back and ask yourself whether trials are fundamentally about determining truth.

Many judges and lawyers might argue that a trial is not an exercise in recovering truth. That’s because for as long as there have been lawyers, they have been massaging and filtering truth so as to substantiate their client’s case and undermine their opponent’s. In the process, truth, through the medium of language, gets spun, twisted, bent, bruised, condensed, ignored, skewed, exaggerated, and shaped, reshaped, and misshaped.

Commentators have said as much. Federal Judge Marvin Frankel observed that “Partisan lawyers do not try to uncover the truth. On the contrary, lawyers trained and commissioned to seek justice, are engaged very often in helping to obstruct and divert the search for truth.” In a similar vein, legendary Judge Henry Friendly wrote, “Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance [the] client’s cause by any ethical means.” There are also constitutional and legal constraints on truth seeking— for example, the Fifth Amendment protection against self-incrimination, the Fourth Amendment prohibition on unreasonable search and seizure, and testimonial privileges such as doctor-patient, attorney-client, and spousal.

Consider, too, the admonition of Dean Monroe Freedman that attorneys have an obligation to dispute, if they can, “the reliability or credibility of an opposing witness whom he [or she] knows to be truthful.” Professor Stephen Gillers identified “courtroom truth,” which he described as “a unique species of the genus truth, and it is not necessarily congruent with objective or absolute truth, whatever that may be.” And Publilius Syrus might have been thinking about trials when, over 2,000 years ago, he wrote, “In quarreling the truth is always lost.”

That said, still, getting at truth must be at the root of a trial. Lawyers should avoid trivializing, minimizing, or, in any other manner, defusing the power of truth. Rather, they should embrace their role as pursuers of truth and strive mightily to cultivate a culture that values truth. To be sure, once a society loses its ability to discern fact from fiction it risks the legitimacy of its core institutions, including its legal system.

Without a commitment to truth, trust and respect for the courts fades. Without a commitment to truth, everything that the judiciary says or does is potentially suspect. Without a commitment to truth, fairness and justice, both of which depend on truth, degenerate into meaningless platitudes.

Do we need any more reason to keep truth from becoming a victim of rhetoric?

Rehearing: “Lawyers occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened.”–Winston Churchill 

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This article, which appeared in the July/August issue of the CBA Record, is reprinted with the permission of the Chicago Bar Association.