The idea that the truth is knowable underpins our society. It helps justify government. It makes the administration of justice possible. To administer justice, we have to be able to find out who did what. In civil matters, the rough-and-ready “balance of probabilities” is a proxy for the truth. In a criminal trial, with much more at stake, the test is “beyond a reasonable doubt.” The laws of evidence and procedure mediate between what is alleged and what may be true. For a long time, lawyers have had a high level of confidence in this approach. You could say the legal profession relies on it. It is our ethical cornerstone.
But what if our belief that we can know the truth is unfounded? What if our perception of the truth is built on shifting sands? Today, in some quarters, it is fashionable to be suspicious of experts, describe facts as alternative, damn news as fake. These silly attitudes are not to be taken seriously. But serious skepticism about our ability to know the truth is justified and has been around for a long time.
On several legendary occasions, a professor teaching the law of evidence has staged a dramatic event in his classroom and then had his students write an account of what happened. Typically, these student accounts are inadequate and differ wildly. One example was an experiment conducted in 1922 by Professor William Moulton Marston, a Harvard-trained lawyer and psychologist, in a graduate course called Legal Psychology held at American University in Washington, D.C. He arranged for an actor posing as an intruder to come into his classroom and behave in odd and menacing ways. When the supposed intruder left, Marston asked his students to write down everything they had seen. Marston had earlier identified 147 observable facts in the incident. The students, on average, noticed only 34. Remarkably, no one noticed that the intruder had been carrying a knife. (A strange footnote: Marston’s main claim to fame is that later on in his career he created the comic book superhero Wonder Woman.)
Over the past several decades, interest has grown in the fallibility of memory and the lack of scientific understanding of memory by those involved in the legal system. One 2015 study (“The fallibility of memory in judicial processes: Lessons from the past and their modern consequences,” by Mark Howe and Lauren Knott, published in the British learned journal Memory) commented that the current scientific understanding of recollective experiences “is that they are fragmentary, contain amnesic gaps, information is often out of order, contain guesses and often contain incorrect details. . . . All memories, regardless of whether they are for traumatic or mundane events that occur in childhood, adolescence or adulthood, are subject to decay, forgetting, interference and other memory mechanisms that inevitably lead to constructive errors and memory distortion . . . Human memory is highly suggestible and malleable.” The study went on to discuss in detail how in some types of judicial proceedings, for example, criminal trials dealing with historical sexual abuse or those relying on eyewitness identification, a proper scientific understanding of memory may be weak or absent, leading to wrong decisions and injustice (although the authors accept that the situation has been improving as sensitivity to the issue increases).
The philosopher William James wrote in 1890, “False memories are by no means rare occurrences in most of us . . . Most people probably are in doubt about certain matters ascribed to their past. They may have seen them, may have said them, done them, or they may only have dreamed or imagined they did so.” In modern times, the neurologist Oliver Sacks (and many others) have echoed this analysis. Sacks writes, “There is . . . no mechanism in the mind for ensuring the truth . . . We have no direct access to the historical truth . . . no way by which the events of the world can be directly transmitted or recorded in our brains; they are experienced and constructed in a highly subjective way . . .”
Novelists have always understood this. I have written before in these pages, “If you want to understand how difficult it is to establish the truth in a courtroom, read Arthur & George, a novel by Julian Barnes about the conviction and imprisonment of someone for a crime he did not commit. It will tell you important things that you won’t find in a textbook on evidence.” In Thus Bad Begins, a recent book by the great Spanish writer Javier Marías, a central character, Eduardo Muriel, comments early in the narrative: “It’s illusory to go in pursuit of the truth, a waste of time and a source of conflict, sheer folly. And yet we can’t not do it. . . . Even the person concerned may not know what the truth is. . . . People tell the facts as it suits them to and come to believe their own version. . . . All we’re left with is guesses and approximations. . . . It’s just a ridiculous waste of time. . . . And yet, and yet . . .”
What are we lawyers to do? How do we ethically proceed if we can’t discover the truth? Must we endure a kind of existential paralysis? That can’t be the right answer. If it were, the courts would have to be disbanded. The work of the world still needs to be done, as best we can. Eduardo Muriel says that seeking the truth is “just a ridiculous waste of time,” but he feels compelled to add, “And yet, and yet . . .”
The answer is we must proceed with great caution and rely on as many safeguards as possible. We live in an age of wild allegations, rocket-fuelled by social media, when detailed accounts of incidents that are decades old acquire standing just by being uttered. To quote William James again, “They may have seen them, may have said them, done them, or they may only have dreamed or imagined they did so.”
Philip Slayton’s latest book, How To Be Good: The Struggle Between Law and Ethics, was published in October.