The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Do we have Room for Truth in our System of Justice?
By Matthew T. Caruso

If most people asked whether they agreed that a trial is the method through which we seek the truth in our system of justice, they would probably say they agree.  Yes, we are seeking the truth.  Let’s take this matter to trial and let the truth come out for the world to see, say people with disputes in the court system. However, if one asked most people what “truth” means, the answer obtained would not be universal.  People can probably agree that they know what a lie is.  A lie is a false statement.  A lie requires a human being to make the false statement.  So is the truth the opposite of a lie? No, something is the truth whether a human being makes a statement or not.  If a tree truly fell in the woods, it truly fell in the woods, whether somebody talked about it falling or not.

Everyone is comfortable using the word “truth”, but do they really know what it means, and is truth essential for justice?  If one searches for the meaning of “truth” in case law or statutes, one will not likely to come up with a definitive answer.  Even the “Truth in Lending Act”, which has “truth” in its title, and begins with a series of definitions, does not define “truth”.[1]  The Truth in Lending Act gives a definition for “finance charge”, which is very helpful, but its references to truth are oblique and require some deductive reasoning in order for the curious reader to get a hint at the meaning of truth.  Like most statutes dealing with the “truth”, the focus of the definitions is placed on what is not true.  The definitions focus on what is false, because it is easier to demonstrate that something is false than it is to demonstrate that something is true.  One single proof of falsity makes a statement false, but to prove something to be true is a bit trickier.  There may be a million things true about something, but how would one know whether there is an unknown fact proving that something is not true before one becomes aware of that fact?  That dilemma is what is referred to as an “unknown unknown”, a concept that caused political reporters to laugh at the brilliant Secretary of Defense Rumsfeld’s famous quote about “known unknowns” vs. “unknown unknowns,” before the reporters did their homework and discovered that “unknown unknowns” are factors considered by deep thinkers.  The existence of unknown unknowns is the concept that can make the truth mysterious, or even elusive.

Another area of the law to look at for a possible answer to the meaning of truth is the law of defamation, where even laymen know that “truth is a defense” to libel and slander.  Consider the following language from the United State Supreme Court decision in Harte-Hanks Communications, Inc. v. Connaughton,[2], where the court discussed the Constitutional protection of free speech in the area of defamation of public figures, which requires a degree of “malice” before someone could be found liable for speaking an untruth.  The court clarified the law as follows:

Actual malice … requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), we have made clear [hah!] that the defendant must have made the false publication with a “high degree of awareness of ... probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964), or must have “entertained serious doubts as to the truth of his publication,” St. Amant, supra, 390 U.S. at 731, 88 S.Ct., at 1325. ["hah!" added]

In this ruling, the Supreme Court seems to be distinguishing the “ultimate truth” (hereinafter referred to as “Truth” with a capital “T”) from the belief a particular person has about whether what he has said is the Truth. If a person had a “high degree of awareness of the probable falsity” of his statement, he cannot use truth (with a small “t”) as a defense.  If a person entertained serious doubts as to the truth of his publication, he cannot use truth as a defense.  The court’s analysis starts with the assumption that the statement is false.  Without falsity, the whole analysis does not work, because the defamation begins with falsity, not with the Truth.  The plaintiff must first prove that the statement is false, then prove that the publisher of the false statement “entertained serious doubts as to the truth of the publication.”  One can have a trial on the issue of defamation, then, without ever reaching an answer to the question of what is the Truth.  The person making the statement does not have to know the statement is false to be liable, and the person does not have to believe the statement is not the Truth; rather, he must have “serious doubts” as to the Truth of what he stated.  How often does one state things about which one has serious doubts?  Many people are wrong all the time, but it would be difficult to prove that they had “serious doubts” as to the Truth, especially if their statements had to do with politics.

It is even possible under the law for something to be true and not true at the same time. Under the rules promulgated under the U.S. Securities law intended to prevent fraud in connection with the sale of securities, one can be found guilty of fraud for telling the truth, if, in telling the truth, one fails to tell enough of the truth to make ones statement the Truth.  Rule 10b-5 of the Securities and Exchange Commission reads in part as follows:

"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any national securities exchange, ...(b) To make any untrue statement of material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.”[3] (Emphasis added).

This law recognizes that one can mislead someone with the truth if one leaves out a few key details.  For example, if one tells someone he should buy the stock of his oil company because he just struck oil, but one omits telling the prospective purchaser that the oil is leaking into the groundwater, causing certain losses due to liability lawsuits, one would be misleading him with the truth.  The truth then, at least under the U.S. Securities laws, can be misleading, if not plainly elusive.[4]

The origin of much of Western thinking on truth comes from ancient Greece, in the writings of Plato, Aristotle and their students.  Aristotle did not have the benefit of advanced mathematics, and he did not use many scientific observations of the physical world to prove his theories, but he gave the Western world the first workable system of deductive reasoning, referred to as syllogisms, that allowed us to determine the truth based on self-evident premises that lead to necessary conclusions.  By working through Aristotle's logical roadmaps, one could determine one thing to be true because some other fact is known to be true.  The classic example is if you have the premises if A then B, and if B then C, then you can deduce that if A then C.  This type of reasoning is used in the courtroom all the time as the basis of circumstantial evidence.  The Illinois Pattern Instructions describe circumstantial evidence as "...proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved.[5]”  As Aristotle discovered, one true fact can lead to the truth of another fact. 

Aristotle's theories were not disputed for hundreds of years, particularly during the dark ages.  The only competing body of knowledge for seeking basic truths was the scholastic knowledge from the church, which in does not appear to come into play in the modern court of law, although some litigants may attempt to assert a divine right, particularly in probate court where siblings fight over who has the divine right to their grandparents’ silverware.  I am not advocating entirely dismissing the divine from the courtroom.  Take, for example, Draper v. Draper,[6] where a nine-year-old girl was asked if she knew what an oath was, in an effort to determine her competency to testify.  The girl answered that she “…understood the nature of an oath, and that if she did not swear the truth she would get into hell-fire.”  In finding this girl competent, the Court must have recognized the Truth of hell-fire.  However, when seeking divine help, lawyers must take caution of the inherent danger that a deus ex machina may be difficult to harness in your client's favor in a court of law.  The divine is just too unpredictable a resource for our system of justice.

In the late 1600's, Descartes came up with an unexpected twist to Aristotle's system of deductive reasoning.  Whereas Aristotle required an undisputable premise of one fact to lead to other facts, Descartes asked the novel question, what if everything is a dream?  How does one really know any facts?  What if ones senses are fooling them?  That is where one really starts at the source of Truth.

Descartes, starting with the famous premise, "I think, therefore I am", stripped away all assumptions, and started his reasoning from very basic self-evident facts.  Descartes, like Aristotle, then used syllogisms to reach other truths, but unlike Aristotle, Descartes also used mathematical equations and laws of physics to jump from the Truth of one fact to the Truth of another fact.  As the very well-educated Founding Fathers of the United States would have been familiar with the works of Descartes, it is safe to assume that Descartes' thinking had an influence on the opening lines of the Declaration of Independence:  "We hold these truths to be self-evident, that all men are created equal, and they are endowed by their creator with certain unalienable rights."  Those words are persuasive because they begin with ultimate truths, and then continue on with the reasons why the Colonies felt compelled to declare independence from England.

It is believed Descartes might be the ultimate source for the term "beyond a reasonable doubt", because Descartes brought the human mind into the equation of determining ultimate Truth.  Every human mind has its own way of reasoning its way to the Truth, and if there is doubt, as Descartes felt, of what a human observes, then Truth can exist only in the human mind.  Some people do not belong on juries, because they are incapable of sound reason.  Their human minds generate Truth via magic and hocus pocus rather than through sound reasoning.  The faultiness of the occasional human mind reveals the genius of the jury system, because to require a prosecutor to convince twelve minds of something beyond a reasonable doubt takes away the risk that the one mind chosen to decide the truth at a trial might be incapable of sound reason.  Twelve people can observe and listen to the truth, and deduce from the truth of one fact to the truth of other facts to decide the ultimate truth presented to them in a trial.  Reasonable doubt requires intelligent minds to determine that the Truth has not been proven under accepted syllogisms we use in every day experience.  Working together, the twelve people combine their minds to become twelve times smarter than one person, just like combining twelve mainframe computers increases the computing power of a supercomputer solving a complex problem.  Generally, the unique perspective of each individual person on the jury enhances the process of Truth-seeking in a jury trial, which is why we Americans hold fast to our right to a jury.

So, then, our system of justice is all about the pursuit of Truth?  Not so fast.  Let us examine, for example, the Exclusionary Rule, a rule solely designed to keep the truth away from a jury.  The Exclusionary Rule holds that a prosecutor cannot use evidence against a defendant, even if the evidence presents what is undoubtedly the truth, if such evidence was procured in violation of the rights of the defendant.[7]  This rule protects the rights of the defendant; it does not protect the search for the truth.  The Exclusionary Rule is intended to punish the prosecution, including all law enforcement personnel such as the police, and to deter them from abusing citizens' rights in the future.  One could argue that the truth is being protected in the long run even though the truth is excluded from the trial in the particular case where the rule is invoked because the Exclusionary Rule keeps everyone honest.  There is no proof to support this premise, but the Supreme Court firmly believes that justice is served by this rule.  Justice, in terms of the Exclusionary Rule, is analogous to the syllogisms invented by Aristotle and Descartes that take us from one true fact to another true fact.  If the syllogism is faulty, then the reasoning by which the truth is arrived at is faulty, and the truth is thus tainted by a nagging doubt about the how the truth was arrived at.  The Exclusionary Rule thus keeps the truth out of the trial in the interest of justice.  It is designed to protect the syllogism, not the truth resulting from the syllogism.

As the epicenter of the life-struggle between truth and justice, the Exclusionary Rule has been expanded, twisted, and has evolved in many bizarre ways, like the evolutionary wars of predators and prey who mutate and evolve defenses and ways to overcome the defenses so that the fittest will survive.  A plant will develop a poison to prevent it from being eaten by an animal, then the animal will develop an immunity to the poison, then the plant will develop thorns, and so on.  Similarly, the Exclusionary Rule has spawned new weapons and defenses in the battle between the truth and the efforts to maintain the integrity of the procedures to procure the truth at trial.  A good example of this phenomenon can be found in James v. Illinois[8] , where the Exclusionary Rule was taken off its original path and driven down a winding detour.  Before arriving at its destination, the Court in James began with an eloquent recitation and reminder of the wisdom of the Exclusionary Rule, as if to reassure a doubting reader, as follows:

There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980). But various constitutional rules limit the means by which government may conduct this search for truth in order to promote other values embraced by the Framers and cherished throughout our Nation's history. “Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct.... [W]ithout it the constitutional guarantee against unreasonable searches and seizures would be a mere ‘form of words.’ ” Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968), quoting Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961). The occasional suppression of illegally obtained yet probative evidence has long been considered a necessary cost of preserving overriding constitutional values: “[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Arizona v. Hicks, 480 U.S. 321, 329, 107 S.Ct. 1149, 1154-55, 94 L.Ed.2d 347 (1987).”[9]

With this introduction to the world of suppressing probative evidence to insulate the criminality of "a few", the Court in James v. Illinois then goes on to modify a subset of the Exclusionary Rule called the "impeachment exception to the Exclusionary Rule", which requires a brief introduction before discussing the holding in James v. Illinois.  The impeachment exception to the Exclusionary Rule was designed to address the anomaly that naturally occurs when the prosecution has information of guilt that is suppressed, and the defendant takes advantage of the fact that the prosecution cannot tell the truth by putting witnesses on the stand who will tell lies in favor of the defendant.  Somehow the pendulum swings back towards truth when the Exclusionary Rule would allow the defendant to put on false testimony while the prosecution has great impeachment evidence, although obtained illegally.  The James court describes this dilemma as "a license to use perjury by way of a defense."[10]  The impeachment exception to the Exclusionary Rule allows the prosecution to use illegally obtained evidence as rebuttal evidence to impeach the false testimony of a defendant who testifies in his own defense at trial.[11]

In James v. Illinois, the defendant, James, was taken into custody as a suspect in a shooting that killed one of a group of eight boys and seriously injured another. James, who then had black curly hair, admitted under police questioning that the previous day his hair had been reddish brown, long, and combed straight back, and that he had just dyed and curled it in order to change his appearance. After James was indicted for murder and attempted murder, the trial court sustained his motion to suppress the statements about his hair as fruit of an unlawful arrest. At trial, five members of the group of boys testified that the shooter had slicked-back, shoulder-length, reddish hair, and that they had seen James several weeks earlier with hair that color and style. Each boy identified James as the shooter even though at trial he had black hair worn in a “natural” style. James did not testify in his defense, but called one Henderson, who testified that on the day of the shooting James had had black hair.  The court permitted the State to introduce James' illegally obtained statements to impeach Henderson's testimony. James was convicted on both counts. The Illinois Appellate Court reversed the convictions on the ground that the exclusionary rule barred the admission of the illegally obtained statements for the purpose of impeaching a defense witness' testimony. The State Supreme Court reversed, reasoning that the impeachment exception to the exclusionary rule-which permits the prosecution to introduce illegally obtained evidence to impeach the defendant's own testimony-should be expanded to include the testimony of other defense witnesses in order to deter the defendant from engaging in perjury “by proxy.”[12]  

The United States Supreme Court overruled the Illinois Supreme Court, and held that the impeachment exception to the Exclusionary Rule does not allow the prosecution to introduce illegally obtained evidence to impeach a lying third party witness for the defense.  In so ruling the Supreme Court stated, almost apologetically:  "The cost to the truth-seeking process of evidentiary exclusion invariably is perceived more tangibly in discrete prosecutions than is the protection of privacy values through deterrence of future police misconduct. When defining the precise scope of the exclusionary rule, however, we must focus on systemic effects of proposed exceptions to ensure that individual liberty from arbitrary or oppressive police conduct does not succumb to the inexorable pressure to introduce all incriminating evidence, no matter how obtained, in each and every criminal case. Our previous recognition of an impeachment exception limited to the testimony of defendants reflects a careful weighing of the competing values. Because expanding the exception to encompass the testimony of all defense witnesses would not further the truth-seeking value with equal force but would appreciably undermine the deterrent effect of the exclusionary rule, we adhere to the line drawn in our previous cases. Accordingly, we hold that the Illinois Supreme Court erred in affirming James' convictions despite the prosecutor's use of illegally obtained statements to impeach a defense witness' testimony."[13] 

The dissent in James took issue with the majority's ruling insofar as the stated intention of the ruling was to prevent the prosecution from using the truth obtained through illegal means, but what in effect results from this ruling is to allow defendants free reign to put on false testimony through third party witnesses whenever the defendant  knows the prosecution is prevented from putting on truthful impeachment evidence because of a rule designed to protect the integrity of the system of justice.  Thus, the defendant can turn the illegal method by which evidence in the government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.  The dissent rightly complained that this ruling is an attack on the search for Truth as follows: 

“The damage to the truth seeking process caused by the majority's rule is certain to be great whether the testimony is perjured or merely false. In this case there can be little doubt of the falsity, since petitioner's description of his own hair was at issue. And as a general matter the alternative to rebuttal is endorsement of judicial proceedings conducted in reliance on information known to be untrue. Suppressed evidence is likely to consist of either voluntary statements by the defendant himself or physical evidence. Both have a high degree of reliability, and testimony in direct conflict to such evidence most often will represent an attempt to place falsehoods before the jury.”[14]  

One can conclude from the James case and similar cases dealing with the Exclusionary Rule that the United States Supreme Court is more concerned with protecting and upholding justice than with ensuring that the Truth is uncovered at trial.  And by "justice", of course, is meant the appearance of Justice.  Many trial attorneys warn their clients not to expect Justice from a trial. 

The appearance of Justice, in any case, is virtually the same thing as Justice.  Young attorneys are taught the importance of a confident delivery in the courtroom in order to be an effective trial attorney.  The delivery and confidence of the speaker makes the words more believable and compelling to the observer, even though there is no logical reason why the confident delivery of the words should affect their believability.  In a similar way, the truth must be delivered in a system of justice that is confident and believable thanks to symbolism and the accoutrements of believability.  The courthouse itself is generally an imposing structure built in a style of architecture exuding confidence in its own authority.  Judges still wear robes and sit in an elevated throne-like chair as they deliver the justice to their subjects, occasionally speaking Latin as if to imply that divine justice that has been bestowed on them from above.  (Historically, claiming authority from the divine was an extremely convenient way to stifle debate or the questioning of authority.)  Even the police, the portion of our system of justice that has the most contact with the general population, exudes the impression of confidence and fairness by wearing uniforms that take away their individuality and give the impression that they are all reading from the same extremely fair government playbook, which they know from their professional training.

We are human.  We do not turn to our court system for Truth but for Justice, or at least the appearance of Justice.  We want our disputes to be resolved in an arena that not only is fair, but also one that looks marvelously fair.  So is there room for Truth in our system of Justice?  Only if we first sacrifice the Truth to give ourselves the appearance of Justice.

[1] 15 U.S.C.A §1601 (West).

[2] Harte-Hanks Communications, Inc., v. Connaughton, 491 U.S. 657, 667 (1989).

[3] 17 C.F.R. 240.10b-5 (emphasis added).

[4]  See e.g. Stransky v. Cummins Engine Co., Inc., 51 F.3d 1329, 1332 (7th Cir. 1995); 17 C.F.R. § 240.10b-5.

[5] Ill. (Civil) Pattern Instr. 1.03

[6] Draper v. Draper, 68 Ill 17 (Ill. Sup. Ct. 1873)

[7] . Terry v. Ohio, 392 U.S. 1, 12 (1968); Mapp v. Ohio, 367 U.S. 643, 655 (1961). 

[8]  James v. Illinois, 493 U.S. 307, 311, 110 S. Ct. 648, 651, 107 L. Ed. 2d 676 (1990).

[9] Id. at 327-28.

[10] Id at 356.

[12] Id. at 311.

[13] Id. at 319-20.

[14] Id. at 327-28.

Matthew T. Caruso is a partner at the law firm of Roberts & Caruso and practices out of the firm’s Wheaton office. Matt concentrates his practice on business litigation, contested probate, construction law, guardianships and criminal law. Matt is a two-time Chairman of the DuPage County Bar Association’s Business Law and Practice Committee. He has acted as lead counsel in over 25 jury trials and numerous bench trials.

DCBA Brief