Judicial challenge: discerning truth

TO the public, and maybe even to the lawyers, judges seem specialists in the truth. The wisdom, perceptiveness, and sagacity that an ordinary mortal somehow acquires along with the flowing work uniform of a judge are supposed to guarantee infallibility when the wearer comes to deciding where truth resides. Put aside the interesting assumption that judges are by training and disposition immune from the prejudices and emotional susceptibilities of Everyperson. Focus solely on the belief that one human being, because he happens to be a professional, is better able than a dozen pickup amateurs to discern veracity (or, alternatively, to ferret out falsehood).

I am not arguing here that the conventional wisdom is in fact wrong. Honesty does, however, compel my admitting that in almost every conceivable case turning on whether a witness is lying, it seems to me preferable that 12 people, not just one, should decide. My preference, though, is not the present issue, which is simply the effect on the judicial system of the judge-as-lie-detector.

More precisely, I ask you to look at judicial truth-recognizing talents in the context of our national commitment to two sometimes conflicting principles: the presumption of innocence, and the assumption that the government does not accuse people baselessly.

The recent rape revision case in Illinois illustrates the problem perfectly. There, you will recall, several years ago a woman accused a man of raping her, and her testimony led to his conviction. This year she undertook to refute her initial accusation.

Now it is an easily observable fact that whatever may have been the antifeminist attitude toward rape cases in the past, the criminal-justice system today has begun to regard the complainant with much more sympathy.

For example, many people automatically call the person who brings the charges ``the victim,'' instead of ``the complaining witness,'' a change in terminology which subtly suggests that this particular defendant did in fact commit a crime as to this particular person. Then, too, we refer to programs for ``victim assistance,'' instead of the more neutral ``witness encouragement.''

What that means, systemically, is that we tend (I use the word gingerly) to act as though an accusation of criminal sexual behavior is, if not tantamount to a guilty finding, at least quite a way along the path. To test this assertion, consider the coverage the press and the electronic media routinely give the prosecutor's announcement that the grand jury has indicted employees of a day-care center. The language in which the reporter casts the story is rarely tentative.

Thus it was in Illinois. After the jury had convicted (beyond a reasonable doubt), even the strictest constitutional stick-in-the-mud would have to concede that the complainant was legally and factually a ``victim.''

When, however, the woman loudly retracted the accusation, the news organizations, and, I think it fair to say, the public, accepted her new story unhesitatingly. From complainant to victim to perjurer: We all cast the woman in whatever current role she chose to play.

Would it not have been better if all of us, particularly the news-purveyors, began by examining -- in the first story -- whether a newfound love of the truth was the most plausible, reason for the recantation.

Surprisingly, an appreciable number of complaining witnesses in a variety of cases (not all sex-related) change their evidence, some even before trial, not years later.

Sometimes, of course, they change because the truth does not jibe with their first reports. Sometimes, however, they change because they have been threatened, or for money, or simply because they no longer have any faith in the judicial system.

I do not know what the truth was in the Illinois case. Neither did the governor, who spoke as though the truth was guilt, but acted as though it was innocence.

Meanwhile, the judge who drew the duty of hearing the ``new'' explanation found himself agreeing that after a fair trial, 12 jurors were no less capable than a black-robed former lawyer when it came to deciding where the truth lay. Without knowing the particular facts in Illinois, a lot of his siblings of the bench would agree.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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