Friday, 5 December 2008

What is Truth?

Pontius Pilate Would Feel Right at Home

History has been repeated. The outgoing Labour Government has been exposed as once again cooking the books and swindling the nation. (For those who wish to review the in's and out's the NZ Herald Editorial gives a judicious and balanced summary of the facts.) These and other instances have served to remind us of how corrupt the previous administration actually became. Its corruption was systematic and endemic. But so deeply infected with the spirit of lying was the former government that it had become to a degree unconscious, artless, and “normal”.

This deeply shameful situation begs the question about the function and place of truth and lies in any human culture. What is wrong with lying? What is truth? Can there be an objective standard of truth? Are there such things as white lies? What happens when lying becomes institutionalised and normal cultural practice?

We are rapidly learning the answer to the last question. Lying and dissembling, acting in a deceptive and misleading manner, has become the norm within modern Athenian culture. We see its manifestation and fruits on every hand.

One of the most shameful, yet completely accepted, examples of institutionalised lying is found in our judicial system. The adversarial nature of criminal and civil courts requires barristers to give a one-sided presentation of the truth. It encourages them not to tell the whole truth. Now of course the theoretical justification for this is that in the clash of opposing advocates, each seeking to put their case in the most favourable light, we will have a situation where we will most likely expose the actual truth of the matter.

There is much to commend this approach. The proverb says: “The first to plead his case seems right until another comes and examines him.” (Proverbs 18:17) The courts must be places where above all else the truth is sought, discovered, and presented. The Bible calls judges gods: that is, they bear the imprimatur of God Himself, and they do His work, since all judgment belongs to Him.

But the institutions of justice have elided from their Christian design and intentions as Athens has taken over. Now, the point is not justice, but to get a “result”. For the prosecution, the result sought is condemnation; for the defence, acquittal. But neither prosecution nor defence are under obligation to tell the “whole truth” as they know and understand it. Witnesses, including the accused if they give evidence, are under oath to tell the whole truth and nothing but the truth; advocates are not so bound.

Advocates are expected to manipulate, distort, exaggerate, twist, dissemble, and massage the truth. When they do that they are seen to be doing a thorough, professional job. This is shameful.

If an advocate is entitled to lie, why not a witness? Why not the police? No, modern Athenian systems of justice have adopted a cavalier attitude to truth-telling.

Another sacred cow is client attorney privilege. We believe this has been abstracted into an absolute which, in modern jurisprudence, means that advocates are expected to conceal and dissemble. This parlous situation which has undermined the respect for truth in modern Athens could be easily solved.

Firstly, place all advocates under oath to tell the truth, the whole truth, and nothing but the truth.

Secondly, institute serious penalties for perjury Anyone who seeks to pervert the course of justice by lying or dissembling should be adjudged guilty of the same crime which is being tried and be given the same penalty by the court. It is shameful that our modern system of justice merely winks the eye at perjury. It is formally wrong, yet no condemnation or serious penalties attach.

This would mean that if witnesses (whether for prosecution or defence) are found (that is, proven beyond reasonable doubt) to have knowingly and willfully lied to the court in a case of, say, theft, or assault and battery, regardless of whether the accused were convicted or not, they would be judged guilty of theft or assault and battery and sentenced accordingly.

Thirdly, make advocates (both prosecution and defence) subject to charges of perjury. If advocates are shown to have knowingly sought to mislead the court they should be liable to charges of perverting the course of justice and of perjury.

These simple measures would radically unclog our court systems and would do a great deal to restore respect for truth and for justice itself. Trials would be shorter. Justice would be better served. Juries would be more prepared to serve. The truth would be discovered more expeditiously.

Is such reform likely? No, not at all.

Athenian commitment to the truth is shallow and publicly acceptable. Parliament, for example, remains the highest court of the land, yet misleading the House (while still formally forbidden) is openly and knowingly done by all parties and virtually all representatives. Parliament should be a public scandal, but given the institutionalised and legalised mendacity of Athens, its lying and dissembling is accepted as normal and largely appropriate. Truth or lying has become a matter of gamesmanship. When the highest court in the land manifests institutionalised and habitual lying, mendacity is fair game everywhere.

For Athens, lying is a sport everyone plays—its moral justification is simply whether one is successful or not. Any lying is acceptable, as long as one's purposes are served and one can get away with it.


richie said...

You present a pretty dim view of our courts and our lawyers.

Lawyers are actually already under an obligation to tell the truth to, and not mislead, the Court. If they don't, they can be disbarred, or attract charges of perverting the course of justice or abuse of process.

From the rules of conduct:

13 The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

Duty of fidelity to court

13.1 A lawyer has an absolute duty of honesty to the court and must not mislead or deceive the court.

Presenting evidence and witnesses

13.10 A lawyer must not adduce evidence knowing it to be false.

13.10.1 If a witness (not being the lawyer’s client) gives material evidence in support of the lawyer’s client’s case that the lawyer knows to be false, the lawyer must, in the absence of a retraction, refuse to examine the witness further on that matter. If the witness is the client of the lawyer, the lawyer must, in the absence of a retraction, cease to act for that client.

13.10.2 A lawyer cross-examining a witness must not put any proposition to a witness that is either not supported by reasonable instructions or that lacks foundation by reference to credible information in the lawyer’s possession.

13.10.3 A lawyer must not put questions regarding allegations against third parties to a witness when the lawyer knows that the witness does not have the necessary information or knowledge to answer questions in respect of those allegations, or where there is no justifiable foundation for the allegations.

13.10.4 A lawyer engaged in any proceeding does not have the sole right to call or discuss the case with a witness. A lawyer acting for one party may interview a witness or prospective witness at any stage prior to the hearing, whether or not the witness has been interviewed by the lawyer acting for the other party.

13.10.5 A lawyer must not treat a witness or potential witness in an overbearing or misleading way and if asked must inform a witness or potential witness of his or her right to decline to be interviewed.

Submissions on law

13.11 The duty to the court includes a duty to put all relevant and significant law known to the lawyer before the court, whether this material supports the client’s case or not. Subject to the procedure required by the practice direction contained in Practice Note [1968] NZLR 608, this duty continues until final judgment is given in the proceeding.

Duties of prosecution lawyer

13.12 A prosecuting lawyer must act fairly and impartially at all times and in doing this must—

(a) comply with all obligations concerning disclosure to the defence of evidence material to the prosecution and the defence; and

(b) present the prosecution case fully and fairly and with professional detachment; and

(c) avoid unduly emotive language and inflaming bias or prejudice against an accused person; and

(d) act in accordance with any ethical obligations that apply specifically to prosecutors acting for the Crown.

Duties of defence lawyer

13.13 A defence lawyer must protect his or her client so far as is possible from being convicted (except upon admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in doing so must—

(a) put the prosecution to proof in obtaining a conviction regardless of any personal belief or opinion of the lawyer as to his or her client's guilt or innocence; and

(b) put before the court any proper defence in accordance with his or her client's instructions—

but must not mislead the court in any way.

13.13.1 When taking instructions from a client, including instructions on a plea and whether or not to give evidence, a defence lawyer must ensure that his or her client is fully informed on all relevant implications of his or her decision and the defence lawyer must then act in accordance with the client's instructions.

13.13.2 If at any time before or during a defended trial a client makes a clear confession of guilt to his or her defence lawyer, the lawyer may continue to act only if the plea is changed to guilty or the lawyer—

(a) does not put forward a case inconsistent with the confession; and

(b) continues to put the prosecution to proof and, if appropriate, asserts that the prosecution evidence is inadequate to justify a verdict of guilty; and

(c) does not raise any matter that suggests the client has an affirmative defence such as an alibi, but may proceed with a defence based on a special case such as insanity, if such a course appears in the lawyer's professional opinion to be available.

13.13.3 Where a defence lawyer is told by his or her client that he or she did not commit the offence, or where a defence lawyer believes that on the facts there should be an acquittal, but for particular reasons the client wishes to plead guilty, the defence lawyer may continue to represent the client, but only after warning the client of the consequences and advising the client that the lawyer can act after the entry of the plea only on the basis that the offence has been admitted, and put forward factors in mitigation.

13.13.4 A defence lawyer must not attribute to another person the offence with which his or her client is charged unless it is necessary for the conduct of the defence to do so and the allegation is justified by facts or circumstances arising out of the evidence in the case or reasonable inferences drawn from them.

13.13.5 A defence lawyer must not disclose a client's previous convictions without the client's authority.

John Tertullian said...

Hi, Richie
Thanks for posting the Rules of Conduct.
We are aware that many conventions in the conducting of trials have been built up over generations of experience. It is clear that the intent of many of the professional and procedural rules is to protect the rights of the accused, accepting that there is a significant imbalance of power and influence between the full weight of the judicial state and the accused.
So, the intent is sound, because it is focused upon achieving justice and fairness in trial--which is absolutely critical, and an essential Christian duty. However, the actual effect of the procedures and rules can be the exact opposite of the intent. When that occurs on a regular basis a thorough re-thinking is required.
We believe that procedures and rules of conduct have generally over time come to assume greater weight than the substance of the matter which is truth and justice.
For example, the Rules of Conduct require that a lawyer always act in the best interests of a client. But how does one define "best interests." Universally, one would dare to assert, it would be believed that if a guilty man were to be "got off" his best interests were being served. Therefore a lawyer is duty bound to do his utmost to ensure that his client escape conviction and punishment, even though he and the client know all along that he is guilty. But is that really in the client's best interests? His genuine interests? Or is it merely something which the client wants? Are interests to be defined by client instructions and preferences? Is evasion of the truth ever in anyone's best interests in the longer term and bigger picture? In courts of law where there are victims and damage has been done to other human beings, either to their person or property, is seeking to avoid making restitution in the client's best interests?
Scripturally, no. But in Athens, yes.
Moreover, what does it mean when the Rules say that a lawyer has an "absolute duty of honesty to the court and must not mislead or deceive the court"? If a lawyer knows that his client is guilty but conducts a defence so as to seek to persuade the court that he is not, is that not an attempt to mislead or deceive the court? A common sense meaning of the Rule would suggest it to be the case.
Clearly, under current court practice, a lawyer can make all sorts of allegations and insinuations about the victim, about witnesses, about the police, whether in roles of prosecutor or defendant, all seeking to construct or weave a plausible "story". Yet the lawyer knows that what he is alleging is deliberate fabrication. Now, laying aside the intent of such procedures (that is, to establish reasonable doubt, and to ensure that through adversarial debate the emergence of the truth)such behaviour in ordinary life would be deemed to be deceitful and dissembling. Should we have a system of procedural justice which has the appearance of doing evil that good may come?
Is it not likely that, notwithstanding the Rules, courts will tend over time to the lowest common denominator--which is to focus upon the procedures and overlook the heart and essence of the matter?
Finally, one cannot help thinking that the Rules of Conduct operate more as suggestions in many cases, rather than actual rules. As an evidence, we would wonder how many lawyers have been disciplined in the past, say, five years for breach of the rules, and how many judges censured for allowing a breach to have occurred? We cannot recall one, although some may have occurred below the radar screen.
If that is the case--that breaches of the Rules rarely are punished--what are we to conclude? That lawyers and courts are pervasively scrupulous about the Rules, or that the Rules are token conventions only, surrounded by large dollops of latitude?
We fear the latter.