If we can't trust witnesses, can we trust trials?

AuthorMatthew Milne-Smith
g Fall 2017
If we can’t rust witnesses, can we
rust rials?
Trials are overrated.
Heresy, I know– particularly so when appearing in The Advocates’
Journal. But hear me out.
A growing body of scientic research indicates that human beings
are not very good lie detectors. Drawing on this research, Paul Fruitman
persuasively argued in the Summer 2017 issue of this Journal that “[o]ur
system trusts that witnesses who testify credibly and condently are tell-
ing the truth. It appears that trust is misplaced.”
Nor is this problem limited to intentionally untruthful witnesses.
Even well-intentioned witnesses who take seriously their oath or arma-
tion to tell the truth fall prey to reconstructing the past to t their desired
narrative. Every counsel can certainly recall the client or witness who
forcefully and credibly insists on a particular version of events, only to
be contradicted by contemporaneous documents or physical evidence.
It is dicult to overstate the signicance of this problem for our
adversarial system of justice, founded as it is on parties leading oral evi-
dence from witnesses, and triers of fact making assessments of credibil-
ity based on that evidence. If cases can turn on credibility assessments,
and human beings’ ability to assess credibility is poor, what does that
say about the quality of justice? Unless triers of fact have an innate or
acquired ability to assess credibility that far exceeds that of the popula-
tion at large, the implications are troubling.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT