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

• Author: Matthew Milne-Smith
• Pages: 77-85

77

g Fall 2017

If we can’t rust witnesses, can we

rust rials?

MATTHEW MILNE-SMITH

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.