Alternative Evidence

A dialogue on how the law will handle a world of alternative facts.

White House Press Secretary Sean Spicer waits for a meeting between Colombia President Juan Manuel Santos and President Donald Trump on May 18.

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Slate is running a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. The subject of their last conversation was the death penalty. This month’s conversation is about the law in a world of alternative facts.

Joel Cohen: We live in a time when the term “alternative facts” has strangely entered the lexicon. While there may be an alternative “view” of the facts, or additional facts, there is no such thing as “alternative facts.” And we should all agree that actual facts should rule the day.

Let’s assume a judge instructs a jury that “the only achievement in a trial is whether truth has triumphed.” Ask almost anyone who believes in the righteousness of the legal process, and they will agree that, of course, a trial is the search for truth; what else could it be? But at this point: Is the concept of “trial by truth” really a shibboleth to make society feel good about its jury process?

Jed Rakoff: The determination of the truth—as best one can do so—is a central feature of any just legal system, but it is not the only value at stake. For example, if someone convicted of a crime is factually innocent, no one would argue that he should be punished; but if the convicted criminal is in fact guilty, that truth tells you very little about what punishment should be imposed. In criminal cases, our Constitution allows a defendant to remain silent, even though that may in some sense impede the search for the truth.

The historic reason for this restriction is that in its absence, the government is easily persuaded to use torture to extract confessions—which is what happened in the English Star Chamber that gave rise to the Fifth Amendment privilege against self-incrimination. But is also commonplace today in legal systems like China’s, that don’t have such a privilege, and, at least for a time, was utilized in places like America’s Guantanamo Bay prison that were supposedly outside the reach of the Constitution. While the Fifth Amendment is actually designed in part to advance the truth by guarding against coerced false confessions, it also serves the independent purpose of putting a check on government practices that most people consider repugnant regardless of their results. In short, while a legal system built on untruths is inherently unjust, truth is not the only requirement for achieving justice.

Discovering the truth is, of course, often difficult. To give just one example, one of the most common reasons for false convictions is inaccurate eyewitness identifications. These eyewitnesses—who powerfully point a finger at a defendant and declare that that is the person they saw commit the crime—are almost always trying to tell the truth as best they remember it. But for reasons that have more to do with limitations of human perception and memory than of bad police practices or subjective biases, their identifications are often wrong. Thus, no fewer than 72 percent of the more than 340 persons exonerated by the Innocence Project were convicted on the basis, in part, of inaccurate eyewitness identification.

This doesn’t mean we should abandon the search for the truth, but rather that we must educate judges and juries about the limitations inherent in eyewitness identification testimony. If as a result, some guilty people escape justice, this will be a necessary price of preventing false convictions. That, at least, is one of the premises of our legal system, one based not on just determining the truth but also on preventing injustice.

Richard Posner: I don’t think I’d use the word truth to describe our trial system if only because, once a criminal trial is over, the determination of punishment is not based on truth. Even the verdict is not, or not always, a function of truth, but rather of which side is more persuasive, or which party is more attractive, on grounds that may have only a tenuous relation to “the truth.” Judge Rakoff’s example of eyewitness identification being often mistaken is important; another is jury reliance on demeanor cues, which are notoriously misleading, such that it would be better to show a jury a witness’ transcript, rather than have them see and hear the witness testify. P.S.: I have doubts about the Fifth Amendment. I don’t think coercing a person to speak should be permitted, but I have trouble seeing why an adverse inference can’t be drawn from the witness’ refusal to speak.

Cohen: Despite the public’s view of it, you both don’t see the trial as necessarily a search for truth. But, playing devil’s advocate, why shouldn’t we make it just that? At least in a criminal case, one person—and often one person only—knows the real truth: the defendant. While this suggestion will be seen as apostasy by those of us at the defense bar, particularly given the Fifth Amendment right against self-incrimination, why shouldn’t the system require the defendant to testify? His testimony, and cross-examination, may better than anything lead to the truth. And so, Judge Rakoff, shouldn’t that be the goal?

Rakoff: Joel’s suggestion, and to a lesser extent Judge Posner’s “adverse inference” suggestion, fail to take account of the fact that the Fifth Amendment privilege is one of the few remaining limitations on prosecutorial overreach. In the typical criminal case, the prosecutor has been able to prepare his case well in advance of indictment while the defendant has few, if any, investigative tools at her disposal. The only advantage she has is the ability to remain silent. Then, after indictment, the defendant receives very little in the way of discovery and is typically facing, under current law, lengthy imprisonment if she is convicted.

As a result, she faces tremendous pressure to plead guilty; and in fact, the defendant does so in 97 percent of all cases (including a fair number of cases in which the defendant is in fact innocent but prefers to plea bargain for a lesser sentence than she would face if convicted at trial). But if she is innocent and wants to go to trial, the only remaining advantage she has is that, at the trial, the government will have to prove her guilt by independent evidence rather than by attacking as “incredible” whatever she might say in her defense if forced to testify. This is more than simply a tactical advantage: It is the one remaining respect in which the government is actually “put to its proof”—that is, obliged to come forward with independent evidence of guilt.

Posner: I agree that the very high statutory maximum sentences place great pressure on a criminal defendant to enter into a plea bargain with the government even if the defendant is innocent, unless he or she has strong evidence of innocence or know the government’s evidence is very weak. But I’m doubtful that the defendant is much helped by not having to testify, as his or her silence may be construed by the jury as evidence of guilt.

Cohen: So let’s take it up a notch: In a 1966 law review article, the late professor Monroe Freedman controversially argued that after attempts to counsel his client otherwise have failed, an attorney should basically be free to put a perjurious defendant on the stand without any disclosure of the attorney’s knowledge to either the judge or jury. Why shouldn’t the defendant be free to testify to his “alternative facts” without being hampered by his lawyer’s ethical quandary that argues that he must act as a roadblock to knowingly false testimony?

Posner: I don’t think the lawyer should have to disclose his client’s intent to commit perjury. The prosecutor can cross-examine the perjurious defendant or present evidence to the contrary.

Rakoff: I disagree with Judge Posner, but I don’t think the question propounded by Joel gets to the heart of the issue. A trial lawyer owes his client a duty of loyalty, but he has alternative and sometimes conflicting duties to professional ethics and to the courts in which he practices. Thus, trial lawyers are sometimes said to be both “advocates for their clients” and “officers of the court.” It follows that if a client informs his lawyer that he intends to go on the stand, take an oath to tell the truth, but then lie, his lawyer rightly should, at a minimum, resign from the representation (which, in turn, will alert the judge to the danger). Otherwise, the lawyer is a knowing facilitator of perjury, in derogation of his duties to professional ethics and to the court.

But having said that, I must add that in the 25 years that I was a practicing trial attorney, I never had a client who told me, in words or substance, that he was going to testify falsely. The much more common ethical quandary comes from the techniques used by some lawyers to prepare their clients to testify whether at a deposition, an evidentiary hearing, or a trial. In many European countries—to some degree even in the United Kingdom—lawyers are forbidden to rehearse with their clients what the clients will testify to on the stand on the theory that the lawyer will “put words in their clients’ mouths” and thereby distort the truth.

In the U.S., by contrast, preparing a client to testify is not only permitted but is almost always done on the theory that the client would otherwise be confronted with surprise and trick questions and, not being prepared to answer them, would be at a disadvantage—and even might say things the client doesn’t really mean. Even though U.S. lawyers in preparing their clients to testify, however, are expressly enjoined from suggesting the “right” answers, in my experience this is an unenforceable restraint and not always followed. How far, therefore, a lawyer should go in preparing her client to testify rests largely with her conscience. As for the truth, both the European and the U.S. approaches produce deviations from the truth, and the best remedy, in either case, is a good cross-examination.