Tuesday, November 19, 2013

Courtroom Procedure - The Facts on the Truth

18 November 2013

I have on numerous previous occasions detailed the nuances of language to you. Sometimes for fun, to attempt to make communication in relationships more harmonious or, as today, to improve your litigation skills. Particularly I want to draw attention to the differences between “facts” and “truths” for both the trained advocate and the layman. While law schools are adept at instruction on marshaling evidence, presentation of evidence, ensuring truthfulness in testimony and establishing the facts I don't feel as though enough attention has been given to “facts” and “truths”. To be effective practitioners I believe we need to better understand the application of words and here, the philosophical and etiological underpinnings of truth and facts.

Truth is a difficult term to define. Go ahead and try without using any resources beyond the concept already contained in that four pound mass in your skull. Write down what you have managed to compose in your mind. While you are at it go ahead and scribe your definition of “fact” which I'll get to after truth.

On the cusps of the 20th century philosophers such as Betrand Russell began to reject the identity theory of truth. According to the identity theory, a true proposition is identical to a fact. Propositions are what are believed, and give the contents of beliefs. Thus it was true propositions that were facts but not false propositions. However, Russell rejected the distinction among propositions as true or false as one cannot believe something known to be false. Borne from this was the correspondence theory. The basic idea of the correspondence theory is that what we believe or say is true if it corresponds to the way things actually are – to the facts.

Structured propositions, which are akin to sentences, can correspond to facts when they have the same form. The proposition that Parent A is abusing the child corresponds to the fact that Parent A violently beat the child.

The coherence theory states that a belief is true if and only if it is part of a coherent system of beliefs. Individual judgments or beliefs then are certainly not the whole complete truth. Thus any statement of fact related to an act by a parent must be viewed in context to parenting in its whole – coherence. This belief of the idealists make little room between a system of beliefs and the world it is about, leaving the coherence theory of truth as an extremely natural option.

The pragmatist theory holds that true beliefs are guaranteed not to conflict with subsequent experience. I have to reject this theory in that what is true to someone is based upon a set of beliefs which are circumscribed by his subjective experience. As for my opinion I regard the correspondence theory to be most relevant to the arena on the child custody battle. So, as for truth, I offer the explanation this way:
– It is only the truth to me if it corresponds to what I believe to be the truth. –
Thus, what one believes – is the truth. At first impression this would seem to conflict with reality but it doesn't.

I use algebraic functioning to check truths. A truth statement can be accurate if it can be deduced through a mathematical process of attribution. This does not comport with reality though in the broader sense. Reality is relative to the observer. This brings us to the conflict among observers. Everything we “know” is based upon our experience – be it from observation or recitation by others -- and how our senses processed it. Thus, the same action can have more than one reality which can produce multiple truths.

Evaluating your witnesses can provide prior insight into the truths that may be revealed at trial. But what about those witnesses appearing on behalf of the adversary? It becomes the work of the practitioner to expose the alternate subjective realities to an adverse witness to produce a belief and subsequent testimony that comports to that which is advanced by his client. This presentation of contradictory stimulus to the belief structure of the witness will likely be done through documentary evidence. The eyewitness who truthfully testifies to observing your client “starting an altercation” at the child's school by yelling at the other parent before being removed can be reconciled to your truth when presented with additional stimulus. A cell phone video taken outside the school displaying a small puncture wound that is still bleeding supports your client's contention that the wound was made by the other parent with a ball point pen. The adverse witness now armed with this new information -- sensory stimulus – develops a new truth.

On 15 September 2009 Rule 201 of the Indiana Rules of Evidence regarding Judicial Notice was expanded to include the records of the court of this state as “facts” admitted into evidence. This is where contradictions in testimony can bolster or harm a case as more truths are introduced. Eliciting the “truth” in a judicial proceeding can produce a murky repository for which the practitioner much traverse in his effort to paint a clear picture of the circumstances favourable to his case.

Yet, while a vigorously contested case can produce mounds of evidence and days of testimony, this may be deficient. While witnesses are sworn to provide the “truth” to the court there is a particular type of fraud which is called an "omission". Anyone who is familiar with being a courtroom witness knows the oath -- to tell the truth, the whole truth and nothing but the truth. It is that "whole truth" that some people don't understand or try to avoid for which the practitioner must have prior awareness.

The threat of prosecution for the offense of perjury is designed to promote truthful testimony. IC 35-44-2-1 provides that a person who:
(1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or
(2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false commits the offense of perjury.
The statute is written in the affirmative sense in that the offender makes a “false” statement – the opposite of “truth”. Thus, the negation – lack of whole truth – is not an offense. Likewise what one perceives as false is subjected to the same demonstrations as the perception of truth.

These illusory truths that are revealed must be reduced to facts. This again is another subjective. In the correspondence theory “facts” are generally taken to be composed of particulars and properties and relations or universals, at least. As I say a “fact” is anything that is generally accepted as true. Hence, it was a fact that the world was once flat. That is, it is not a fact now that our world was once flat but for a period of time it was the general perception that the world at that time was flat and, thus, a fact.

Courts of law do not propound to be the forum which divulges truth. Rather, they are the creator of legal facts. Indiana Trial Rule 52 speaks of this duty as to produce Findings of Fact and Conclusions of Law. The fact as opposed to the truth is a much more objective finding. Facts are what are accepted to be true by a population. A truth requires just a single observer. An event can produce numerous truths dependent upon the number of observers as well as the circumstances under which their sensory organs were stimulated and how their brains processed that information.

Truthful utterances therefore are the effect of an event reference on the sensory organs and the processing and memory formulation of the observer. Built into that is a range of subjectivity that requires a skillful navigator to wade through in an effort to provide an accurate recollection of an event. There is no guarantee that such accuracy will be received. Our higher courts have acknowledged this in saying that due process requires “an opportunity to be heard”. Never is there mention that courts are to make a “correct” verdict or reveal the truth.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

View Stuart Showalter's profile on LinkedIn

Subscribe to my child custody updates

* indicates required
©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.


No comments: