In every courtroom I have ever practiced there is a sign that hangs over the bench. The sign reads, "We who labor here seek only the truth."
That is a lie.
The adversary system of justice is just the best that the Anglo-American mind could devise to determine legal truth; it does not sound like a particularly sound idea and our legal forefathers further rigged the system. They elided over Truth and blithely ruled that process and ends collapse into one. Truth, therefore, is what the jury decided. There is no external referent. Truth simply is process. It's a cynical cop-out, perhaps the best cop out ever, but it is indeed an odd definition of truth. As long as "due process" is followed and is reasonably pristine; as long, that is, as the pipes are shiny it does not matter that occasionally, and not at all unusually, shit comes out. The ontologically not guilty get convicted with alarming frequency; the ontologically guilty get acquitted even more regularly. We don't do ontology here.
The adversary system is not even completely adversary. The defense never has to do anything. As long as we are respectful and not disruptive of the trial the defense attorney and his client could sit at counsel table and play a crossword puzzle. We don't because we are trained that we must cross-examine in labor after the truth.
A much better analogy to the Anglo-American trial process than a fierce contest between adversaries is Olympic weight-lifting. That 1,000 pound barbell on the floor is your client firmly rooted in the presumption of innocence. To remove the presumption of innocence the prosecution must shoulder the burden of that immensely heavy weight, clean and jerk lift it over their head and hold it there for a second or two without quivering or wavering to demonstrate control. The jury are the judges if the prosecution lifted the weight over their head and held it, or if they only got it to waist level or to chest level or if they quivered. If the latter then the defendant is not guilty. If the former then the Truth of guilt is proven beyond and to the exclusion of every reasonable doubt and your client spends the rest of his days in the Gray Bar Hotel. Defense counsel makes an educated prediction, wizened by experience, on whether the prosecution can shoulder that burden. He gives his best, most nuanced advice to his client, and the client decides. He is the one who has got the skin in the game.
It is a curious system, the best known to man; which speaks to the limitations of man's knowledge.
That is a lie.
The adversary system of justice is just the best that the Anglo-American mind could devise to determine legal truth; it does not sound like a particularly sound idea and our legal forefathers further rigged the system. They elided over Truth and blithely ruled that process and ends collapse into one. Truth, therefore, is what the jury decided. There is no external referent. Truth simply is process. It's a cynical cop-out, perhaps the best cop out ever, but it is indeed an odd definition of truth. As long as "due process" is followed and is reasonably pristine; as long, that is, as the pipes are shiny it does not matter that occasionally, and not at all unusually, shit comes out. The ontologically not guilty get convicted with alarming frequency; the ontologically guilty get acquitted even more regularly. We don't do ontology here.
The adversary system is not even completely adversary. The defense never has to do anything. As long as we are respectful and not disruptive of the trial the defense attorney and his client could sit at counsel table and play a crossword puzzle. We don't because we are trained that we must cross-examine in labor after the truth.
A much better analogy to the Anglo-American trial process than a fierce contest between adversaries is Olympic weight-lifting. That 1,000 pound barbell on the floor is your client firmly rooted in the presumption of innocence. To remove the presumption of innocence the prosecution must shoulder the burden of that immensely heavy weight, clean and jerk lift it over their head and hold it there for a second or two without quivering or wavering to demonstrate control. The jury are the judges if the prosecution lifted the weight over their head and held it, or if they only got it to waist level or to chest level or if they quivered. If the latter then the defendant is not guilty. If the former then the Truth of guilt is proven beyond and to the exclusion of every reasonable doubt and your client spends the rest of his days in the Gray Bar Hotel. Defense counsel makes an educated prediction, wizened by experience, on whether the prosecution can shoulder that burden. He gives his best, most nuanced advice to his client, and the client decides. He is the one who has got the skin in the game.
It is a curious system, the best known to man; which speaks to the limitations of man's knowledge.
