The Ring of Truth, the Clang of Lies: Assessing Credibility in the Courtroom
Smith, Lynn, University of New Brunswick Law Journal
[The Honourable Justice Lynn Smith of the Supreme Court of British Columbia delivered the thirty-second Viscount Bennett Lecture at the University of New Brunswick, on February 22, 2011.]
Humans deliberately deceive one another. This capacity to deceive creates some of the greatest challenges in our lives and relationships. The deception in the Garden of Eden is central to the Judaeo-Christian Creation story and to the notion of "sin". It is no surprise that many works of literature and theatre explore human mendacity and its consequences.
The story of Othello captures the agony experienced by someone who does not know whether to believe another person. In the film Doubt, (1) a nun is suspicious of a priest's relationship with an altar boy, despite the priest's denials that he has done anything inappropriate. The film's promotional tagline captures the conflict the nun faces: "There is no evidence. There are no witnesses. But for one, there is no doubt."
Human beings are not only deceptive but frequently unreliable. Most often this is unintended; we make mistakes for any number of reasons. Our powers of observation and recollection are what they are: imperfect. As well, we may firmly, but wrongly, believe that something happened in a certain way because we are thinking wishfully, or because we are fearful, confused or misled.
But sometimes we are unreliable because we knowingly set out to deceive. That is my topic: deception in the courtroom that is knowingly perpetrated by witnesses who fail to give truthful accounts of events and the consequential "credibility assessment" that forms part of the fact-finding process in Canadian trials.
I will use the term "credibility" for the specific issue of deliberate deception, and the term "reliability" to refer to the larger set of issues that may affect the testimony of witnesses, stemming from inaccurate observation or memory.
The title of my talk is "The Ring of Truth, The Clang of Lies." The title suggests that if one is born with, or can develop a good ear, the task of distinguishing the pure ring of truth from the harsh clang of lies might be straightforward; however, I will be exploring whether or not that is so.
Anyone involved in the legal system has thought about the problems inherent in fact-finding. It is a difficult task. That fact-finding can be difficult does not mean that it can be avoided. Trial judges, and jurors, must consider the evidence and find facts if at all possible. At the very least, they must decide whether the party with the burden of proof has or has not established a certain set of facts to the requisite standard.
Although fact-finding does not always depend on conclusions about truth-telling, it often does. Frequently, in order to decide what happened at a particular moment in the past, the trier of fact must first decide whom to believe, and how much to believe from various persons' accounts of the same events.
Of course, it is not only in courtrooms that people depend upon accurate credibility assessment. For example, in December, 2009, seven CIA agents were killed by a man they had believed to be their agent. He, in fact, turned out to be a triple agent. The CIA knew that this man had posted extreme anti-American views on the Internet, but had concluded that what he was doing in posting those views was creating a good "cover".
Another very well-known example of a long-term error in credibility assessment by a large number of people can be found in the huge financial losses experienced as a result of Bernie Madoff's deception.
The courtroom creates special conditions and imposes special constraints on the assessment of credibility, but the process itself is similar to what we informally and often silently do in our daily lives. In the courtroom, this process is formalized and, where credibility assessment matters, stated aloud. …