What is Truth?
Pilate then went back inside the palace, summoned Jesus and asked him, “Are you the king of the Jews?”
“Is that your own idea,” Jesus asked, “or did others talk to you about me?”
“Am I a Jew?” Pilate replied. “Your own people and chief priests handed you over to me. What is it you have done?”
Jesus said, “My kingdom is not of this world. If it were, my servants would fight to prevent my arrest by the Jewish leaders. But now my kingdom is from another place.”
“You are a king, then!” said Pilate.
Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”
“What is truth?” retorted Pilate. [1]
It's often suggested that attorneys are combative, disagreeable people. You hear it sometimes in the form of dubious career advice given to children—"Oh, you like to argue with people, you should be a lawyer.” In reality, rather little of what most lawyers do resembles a quarrel or a shouting match. Even the parts that are actually called “argument,” either in written briefs or oral argument, are actually focused on persuading a third party rather than “arguing” in the colloquial sense with anyone.
But there are routine parts of practice, particularly as a trial lawyer, that are unimaginably rude by normal standards of behavior. It's not in my nature to call people liars or accuse them of rank incompetence or criminality. I certainly don’t do so in my everyday life. And I would normally feel bad if fully-grown adult broke down into tears and began weeping after I'd asked them some pointed questions. But I obviously do all of those things at trial and don't generally feel any remorse in doing so. Judges and juries must make difficult decisions at trial and sometimes that requires blunt, even painful judgments about the world that we would just as soon avoid in polite conversation.
People sometimes describe a trial as a “search for the truth.” While not precisely wrong, that isn't all that it is. One of the earliest ancestors of the modern trial was the moot, a kind of folk assembly first mentioned in the Kentish laws of the 8th century. [2] My legal history professor back in law school described the moot as a “business meeting” for local people to officially gather, in the presence of a doomsman or shireman, and try to resolve disputes between neighbors. The central purpose of a moot was not to discern some ultimate truth. It was to avoid feuds and solve problems. It was to decide “what should we do about this?” And while the modern trial has evolved in a thousand ways from the moot, the basic question remains. Two cars crash and people are injured: What should we do about that? A man made a promise in exchange for money and broke it: What should we do about that? A trial is a place where the state decides what to do—if anything—not with respect to grand issues of public policy but with respect specific events and specific people. A sovereign intervention in the mud of everyday life.
But while a trial is not simply a “search for the truth,” the truth has an extraordinarily central role at the trial. And attorneys on trial ignore the truth to their peril. Trying a case means marshaling evidence, presenting testimony, and fundamentally telling a story about something that exists in the world. Sometimes the story seems like something pulled from Hollywood and other times it's a struggle to make it even remotely interesting. But storytelling is a key skill for any trial lawyer.
But no matter how good a storyteller you are, there is a fundamental reality to the world outside of the courtroom. What happened, happened. The truth about the events at issue in trial is not always discernible and it is not always provable. But it is there. And both ethically and strategically, that truth needs to be a limit on the story that you tell at trial.
Let's start with the ethics rules. Rule 3.3(a) of the New York Rules of Professional Conduct makes clear that you can't say something to a judge or a jury that you know to be false. Nor can you present evidence that you know to be false. Specifically:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Similar rules exist in essentially all other U.S. jurisdictions. As with most ethics rules, there are clear cases and there are edge cases. If a witness tells you that they are going to lie, you cannot elicit testimony from that witness. If your client tells you “yeah, I made this fake e-mail,” you cannot put that document into evidence. But the ethics rules do not require you to be neutral and unbiased. If your client says that something happened and another witness disagrees, you are generally allowed to believe your client. And you aren’t typically required to conduct much soul searching about which witness—in the abstract—you might find to be more credible. [3]
And when people get into trouble, it often involves less obvious forms of dishonesty than the fake exhibit or overt perjurer. In United States v. Bluford, [1] a prosecutor was trying a felon in possession of a firearm case. A police officer engaged in narcotics surveillance testified that he saw the defendant take a pistol out of his jacket and show it to someone else. When the officers arrested the defendant sometime later, the gun was not in his possession, though a similar one was recovered nearby. The defendant claimed that he was not the person that the police officers observed and that he would be putting on several alibi witnesses. While in custody, the defendant spoke to the alibi witnesses repeatedly on the telephone and the government recorded the calls.
In a somewhat brazen bit of sandbagging, the government did not provide the tapes of the calls to the defense until the trial was already underway. The government then argued in closing that the lengthy calls between the defendant and the witnesses were evidence that he had concocted the alibi story after the fact. The jury convicted. Only after the trial was over that did the defense learn, after finally having the opportunity to listen to the hours of taped conversations, that the tapes contained absolutely no discussion of the alibi story. To the contrary, the defendant had told one of the alibi witnesses: “all you've got to do is tell the truth.” In post-trial hearings, the prosecutor admitted that he knew that there was nothing on the tapes to suggest a faked alibi but had argued the theory anyway.
On review, the Ninth Circuit reversed, finding that the prosecutor had engaged in misconduct. It held that “the difference between a lawyer asking the jury to infer only things that he believed in good faith might be true and making factual assertions that he knew well were untrue is the difference between fair advocacy and misconduct.” The prosecutor was not permitted to argue that the defendant had told witnesses to lie over the phone when literally had tapes in his possession showing that this was false.
The ethics rules are important, but they aren't the end of the matter. Under the rules you are free to tell a story that might be true—that is, there's no definitive proof that it's false—but which isn't necessarily the most plausible story given the evidence. And it can be very tempting to do so! You see an e-mail that looks bad on first inspection and think “is there any way to construe these words that is good for my client?” And if you’re even halfway clever with language, you can usually come up with something even if you have to read the message sideways and upside down.
But even if you're allowed to do that, should you? In general, no. I would submit that this is one of the biggest strategic mistakes that attorneys, even good attorneys, make at trial. They try to tell a story that puts their client in the best possible light, even if it's only barely colorable given the evidence. They then look at each and every piece of evidence that doesn't quite fit and try to explain it away.
This is a recipe for disaster. The truth exists; It has a reality that manifests itself in a thousand ways and threatens to push back against any story that conflicts with it. No matter how carefully you've scrutinized exhibit lists or deposition testimony, new bits of evidence, whether documents for impeachment, rebuttal witnesses, or just new lines of questioning not previously explored, are constantly leaking into the trial in dribs and drabs. If your story is true—if you've made certain that what you're telling the jury is what happened as precisely as you can determine it—then all of that unavoidable leakage from the real world is to your benefit. It will only further bolster your case. If, on the other hand, you've constructed an account that makes your client the hero but probably isn't quite what happened, you are quite literally fighting with the universe.
It's possible that you may still win—juries don't always get things right. But you've made your job a lot harder and a lot more dependent on luck than necessary. And you've risked the most important resource you have, your credibility, by telling the jury a story that isn't quite right. Even if the distortion isn't significant, even if your client still deserves to win, the jury may conclude that you're a liar and that nothing that you say is worth taking seriously.
That doesn't mean that you have no agency in the story that you tell. The framing, the moral message, who is a hero and who is a villain—all of these things are all up for grabs. It is fully within your power to explain to a jury how to feel about what happened and how best to answer the fundamental question “what should we do about this?” But what happened, happened. If your story can't be squared with the most likely version of those facts, the answer isn't to argue for less likely facts. It's to come up with a better story.
[1] John 18:33-38 (NIV translation).
[2] J.H Baker, An Introduction to English Legal History, p. 4. [4th ed. 2002].
[3] Obviously, this changes if there is definitive proof that your client is incorrect, such as a recording or other indisputable evidence.
[4] 312 F. 3d 962 (9th Cir. 2002)
