While we may hear such precepts as Justice is Blind which presumes that a judicial officer favours no party I do contend that Justice has a wide eye open and that it is looking for ways to obscure Truth. Testors in court swear or affirm to tell the truth, the whole truth, and nothing but the truth which I explored in YMCA, fraud and why you should read the contract. Truth, I have contended, cannot be told but rather revealed because Truths are self-evident as I alluded to in Courtroom Procedure - The Facts on the Truth. Semantics aside let’s say that witnesses are to accurately reflect conditions as they existed, feelings as realized, and speculation as to causes and future probabilities. I apply these aspects of testimony to lay witnesses and experts -- lay witnesses first.
The two most effective and powerful truth serums are the emotion of anger accompanied by its relative neurotransmitters and alcohol. When the emotion of anger surfaces in an individual his thoughts become concentrated in the amygdala -- the primal or reactive part of the brain. Neurotransmitters called catecholamines are released and increase arousal and our defenses. During this stressful event, which is compounded by trying to stay calm on the witness stand, cortisol and norepinephrine are released which also inhibit cognitive functioning.
The amygdala is so efficient at warning us about threats, that it gets us reacting before the cortex, which is responsible for thought and judgment, is able to check on the reasonableness of our reaction. In other words, our brains are wired in such a way as to influence us to speak or act before we can consider the consequences of or inhibit our actions.
Thus, when the brain is operating in the fight or flight zone as it prepares for anger-induced battle and is asked to recall information which may require the performance of a cognitive function -- in the cortex - such as creating a fabrication to avoid potential embarrassment, culpability, or some other undesirable response the brain is unlikely to do so. While in its fight or flight mode -- impulse oriented -- the brain doesn’t have time to think through various scenarios before making a life preserving selection. Thus, the response to a query of one’s memory will produce an impulsive response. That response is more likely to be accurate rather than molded to reflect what the subject desires to reveal or withhold.
An example, although fictional, is when Jack Nicholson as the character Col. Jessup in A Few Good Men is driven to anger and an outburst on the witness stand in which he proclaims that he did order the Code Red although he had adamantly denied such when cool and collected while using his frontal lobe to formulate fictitious responses.
In the courtroom attempts to incite a witness to anger can draw objections -- badgering the witness, being argumentative, asked and answered, and the like. The intent being that witnesses should deliver their testimony in a calm and civil manner respecting the formal decorum of the courtroom. But this is not conducive to extracting truthful testimony from a reluctant and cunning testor. If calm is desired then administering a depressant such as alcohol should be the order of the day. Not only would the witness be calm but the alcohol would diminish inhibitions which may be consciously held to block the accurate reflection of feeling, intent, or testimony that may be damaging to a favoured party. This is why drunkards are so often said to have made comments or acted in a manner viewed as inappropriate. This is only a reflection of the person’s natural inclinations which are no longer inhibited by the dictates of manners or deception. That is, the drunkard expresses his true self. Courts, however, considers witnesses under the influence of alcohol to not be competent to testify. If truth is sought then alcohol is likely the only way some witnesses would be competent to testify.
Another category of witness is the ancillary professionals who are to be providing objective information to the court across a broad spectrum of disciplines. In child custody cases these generally include mental health professionals and custody evaluators. These expert witnesses are often selected by a party through an interview process or upon research as to their propensity to advocate a particular position or bias. The expert conducts his work and is then queried by the party’s attorney to assess whether the expert’s testimony will be beneficial to the party’s position. Finally, the expert witness is counseled on what to expect during the trial interrogation. Sometimes parties will employ redundant experts and then select the one most favourable as the party’s testifying expert.
When I am employed to perform an assessment of a parent or report on my observations I do not disclose to the party to what my anticipated testimony will include. This ensures that my testimony is objective and provides more credence as I cannot be declared to be a hired gun advocating the party’s position. My purpose is to assist parents in developing behaviours and parenting styles that are conducive to improve parent-parent and parent-child relationships not to ‘winning’ a case for him or her. Prior disclosure of findings or anticipated testimony to a party allows a party to suppress that evidence by not calling that expert as a witness. Thus, the court is deprived of additional accurate, or rather unbiased, information.
As with any system scripted by a structure or rules the outcomes are more likely to produce results tainted by the biases of those influencing the composition of the rules rather than delivering genuine results.
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