Sunday, February 08, 2009

News Flash: Witnesses Sometimes Lie and Make Mistakes!

The same NYTimes article (see today's previous post) states:
Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.
I am not at all sure that genuine "experts" ever thought that false confessions are rare, much less "inconceivable." (Isn't Miranda -- you know: "You have the right to remain silent etc." -- isn't that Supreme Court decision pretty good evidence that some folks have worried about false confessions for quite some time? And what about the notorious show trials in Stalin's era? Did everyone here think those confessions were true? Or did some folks here conceive of the possibility that the confessions showcased in those trials were generally false? And what about confessions extracted by torture during the Spanish Inquisition?)

But let's be charitable: Let's let the NYTimes' thesis of the generally-perceived rarity of false confessions pass.

Even so, I am quite sure that no passably-educated law professor, lawyer, or judge ever thought that witnesses are "rarely" wrong. It has been known for some time that many trials present the spectacle of one witness saying one thing and another witness saying the opposite. I dare say this sort of spectacle has been around for thousands of years. (What about King Solomon and the custody case he adjudicated in his own inimitable fashion? I guess he must have conceived of the possibility that one of the two women before him was "wrong." And the same thought must have occurred to the people who told and heard the King Solomon story.)

The briefest dip into the waters of the law of evidence would have revealed to the NYTimes that the law takes the view (and has taken the view for a very long time) that witnesses can be "wrong" for a variety of reasons -- because of defects in memory, limited understanding, defects in sensory organs, bias and interest, and, yes, finally, untruthfulness -- and just a bit of research (or TV watching) would have revealed to the NYTimes that the law of evidence sanctions the use of a variety of courtroom techniques (and pretrial strategies as well) for ferreting out such sources of testimonial error.

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

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