A couple of recent cases involving allegations of misconduct by teachers got me thinking about how little the truth really matters in our legal system. Well, the real truth, that is.
It seems to me that, when it comes to adjudication forums, there are three types of truth—the actual truth, the version of the truth which each competing party asserts, and the truth as the adjudicator ultimately determines it.
Which reminds me of former U.S. secretary of defense Donald Rumsfeld’s three categories of knowledge. In February 2002, Rumsfeld attended a press briefing where he addressed the absence of evidence linking the government of Iraq with the supply of weapons of mass destruction to terrorist groups.
In the course of that briefing, he stated, “There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—there are things we do not know we don’t know.
I’m not certain that my three types of truth rank up there with Rumsfeld’s three categories of knowledge (and, frankly, I’m not certain that I want them to).
The actual truth of a situation is what really happened. Not what people perceive the events to have been but what really and truly occurred.
The actual truth will almost never be known in a given case and will almost never be the version which the parties assert or the one which the adjudicator ultimately accepts as the complete truth.
Because unless the situation could be recorded—both in a three dimensional visual and audio sense —that version will largely be lost to the mists of time.
Even in famous cases in which video evidence of the events exists —Robert Dziekanski being tasered at the Vancouver airport in 2007 comes to mind – it is impossible to know everything that happened and have a totally accurate record of it.
Life is not like a televised sporting event in which each play can be reviewed from innumerable angles to see who did what to whom, whether the puck crossed the line, whether the ball touched the ground before being caught.
And human minds are absolutely nothing like video/audio recorders—we recall things the way we want to and we have a tendency to fill in gaps in our recollection.
The version of the truth which each competing party asserts is a wholly unreliable record of what actually happened.
As humans, we retain only disjointed snippets of information and we start losing that recollection almost immediately.
I recall seeing a car strike a pedestrian a few years ago as I was driving to a hockey game one evening.
I stopped and gave my name and contact information because I had been positioned in such a way that I had a clear view of what occurred.
As I watched the scenario developing, I recall saying out loud, “He’s going to hit him…he’s going to hit him…” (and then he hit him).
I thought I had the whole scenario stuck in my mind, partly because it turned out the pedestrian was an acquaintance of mine.
And yet, months later when an investigator called me to get my version, there were significant aspects which I could no longer recall with accuracy.
Was my car the first one in line next to the crosswalk or was there a car positioned in front of mine?
Did I see the pedestrian the entire time he was crossing the street or did I only pick him up as he crossed the centre line into the oncoming lane?
When the vehicle struck him, did he land on the roadway or was he thrown over the curb onto the grass?
Even more troubling, we humans have a tendency to assert a version of the truth which is favourable to ourselves.
If that wasn’t the case, and if we could all be trusted to be totally objective in our recall, there wouldn’t be a need for cross-examination and for devices such as lie detectors.
The only version of the truth which really counts, of course, is the version the adjudicator accepts as what must have happened.
Anyone who has worked in the legal system—lawyers, judges, arbitrators, jury members—will know that what an adjudicator decides must have happened (whether on a balance of probabilities or a beyond a reasonable doubt standard) in any given case can be drastically different than the actual truth.
Wrongful convictions of innocent individuals such as David Milgaard amply demonstrate that the version of the truth accepted by a judge or jury can be wildly inaccurate.
Still, the reality of our legal system—and all the adjudicative processes it comprisess —that we are stuck with other fallible humans as decision makers.
It’s why lawyers will sometimes tell clients that the truth doesn’t matter. What matters is what the adjudicator believes the truth to be.
I think that, referring back to Rumsfeld’s categories of knowledge, the outcome of many adjudicative processes might qualify as an “unknown unknown.”
The adjudicator doesn’t know that he or she doesn’t know what really happened.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. This subject matter is provided for general informational purposes only and is not intended as legal advice.
www.smithsonlaw.ca
