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SSRN

Vol. 104

Honesty Without Truth: Lies, Accuracy, and the Criminal Justice Process

Lisa Kern Griffin, Candace M. Carroll and Leonard B. Simon Professor of Law, Duke University School of Law.

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11 Sep 2018

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The current construction of the Confrontation Clause right also excludes some reliable evidence—especially from victim witnesses—because it favors face-to-face conflict even though overrated demeanor cues can mislead. And courts permit testimony from forensic experts about pattern matches, such as bite-marks and ballistics, if those witnesses find their own methodologies persuasive despite recent studies discrediting their techniques. Exploring the points of disconnect between honesty and truth exposes some flaws in the criminal justice process and some opportunities to advance fact-finding, truth-seeking, and accuracy instead. At a time when “post-truth” challenges to shared baselines beyond the courtroom grow more pressing, scaffolding legal institutions, so they can provide needed structure and helpful models, seems particularly important. Assessing the legitimacy of legal outcomes and fostering the engagement necessary to reach just conclusions despite adversarial positions could also have an impact on declining facts and decaying trust in broader public life.

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