Adversarial system flawed way of finding 'truth'
(published as a guest column on August 1, 2017
Copyright 2017 (all rights reserved)
in the San Antonio Express-News)
Our adversarial system, under which lawyers present their clients’ cases to the trier of fact (a judge or a jury), has been around for hundreds of years.
In civil and criminal cases, attorneys gather and submit evidence, question witnesses, and control what is presented to the trier of fact. The judge or jury then considers the competing claims of each side and decides the outcome of the case, thus arriving at the “truth.”
In contrast, under the inquisitorial system a judge or a tribunal gathers all evidence relating to a case, investigates, then decides, without considering differing perspectives presented by the parties.
The adversarial process goes back to before our country was founded, so few litigators would consider adopting any other method for trying a case.
It’s true, as critics contend, that adversaries in a trial are only interested in “winning” the case for their clients, not in discovery of the truth. Lawyers take advantage of the system’s flaws in fighting their battles.
That’s because the system allows them to discredit witnesses by misleading the jury concerning a witness’s credibility and ultimately the “facts” of the case. Attorneys often feed on the biases or prejudices of the jurors. Actually, the deception starts before then, during voir dire, when the attorneys select the jurors.
In voir dire, even though lawyers would have you believe that they’re just assuring an impartial trial, what they’re really doing is trying to find jurors sympathetic to their arguments and biased in favor of their case. One of the ways they do that is by exercising preemptory challenges, which allow them to excuse a juror without giving a reason for the dismissal.
Instead of doing all they can to assure that the jury considers all of the evidence, lawyers are in combat to persuade jurors to find for their clients. Some view it as a molding of the evidence and a manipulation of the truth.
In his publication, Practical Guide to Evidence, Peter Murphy offers a humorous example: After witnesses had given conflicting accounts in an English court, the frustrated judge asked the barrister, “Am I never to hear the truth?” The lawyer replied, “No, my lord, merely the evidence.”
Of course, it’s the judge’s function to assure attorneys don’t overstep the bounds of fairness in persuading the jury.
So despite the opponents’ interests in doing whatever it takes to win the jury over, the judge must step in to minimize each side’s attempts to deceive the jury, leading it to misconstrue testimony or to give undue weight to a piece of evidence.
A trial, stripped bare of its veneer of truth-searching, is nothing more than storytelling, where facts are “proven” by each party persuading the trier of fact that its story is correct. The trier of fact then assesses the stories to determine the outcome.
Some proponents argue that if the purpose of a trial is to discover “what happened”, a competition by each side to persuade the trier of fact is the best way to do that. This explanation is known as the Truth-Finding Theory.
Gary Goodpaster, however, in the Journal of Criminal Law & Criminology (1987) Vol. 78, No. 1, disavows this theory: “[I]t is doubtful that many people think that an adversary contest is the best way to [determine] what actually happened. Neither scientists, engineers, . . . nor scholars from any other discipline use . . . adversary trials to determine facts. Following the space shuttle explosion, for example, no one proposed that the investigating . . . [c]ommission adopt the procedures of adversary . . . trials. Indeed, . . . many people would react incredulously were such procedures adopted.”
According to Goodpaster, proponents explain the Truth-Finding Theory by presupposing an “invisible hand” guiding the competition. They contend that when two adversaries work hard to win their case instead of helping the jury find the truth, they are still serving the goal of truth-finding, without actually intending to.
“The efforts of the opposing attorneys to maximize the interests of their side” under this theory, Goodpaster explains, “leads to the best systemic results even though neither attorney directly tries to achieve those ends.” He concludes that no empirical evidence exists to support such a theory.
So why, one might ask, has the adversarial system survived throughout our nation’s history? Because, some answer, no one’s found a better way.