Canadian Lawyer

16 F E B R U A R Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m But what if our belief that we can know the truth is unfounded? What if our perception of the truth is built on shift- ing sands? Today, in some quarters, it is fashionable to be suspicious of experts, describe facts as alternative, damn news as fake. These silly attitudes are not to be taken seriously. But serious skepticism about our ability to know the truth is justi- fied and has been around for a long time. On several legendary occasions, a pro- fessor teaching the law of evidence has staged a dramatic event in his classroom and then had his students write an account of what happened. Typically, these student accounts are inadequate and differ wildly. One example was an experiment conduct- ed in 1922 by Professor William Moulton Marston, a Harvard-trained lawyer and psychologist, in a graduate course called Legal Psychology held at American Uni- versity in Washington, D.C. He arranged for an actor posing as an intruder to come into his classroom and behave in odd and menacing ways. When the supposed intruder left, Marston asked his students to write down everything they had seen. Marston had earlier identified 147 observ- able facts in the incident. The students, on average, noticed only 34. Remarkably, no one noticed that the intruder had been carrying a knife. (A strange footnote: Marston's main claim to fame is that later on in his career he created the comic book superhero Wonder Woman.) Over the past several decades, interest has grown in the fallibility of memory and the lack of scientific understand- ing of memory by those involved in the legal system. One 2015 study ("The fal- libility of memory in judicial processes: Lessons from the past and their mod- ern consequences," by Mark Howe and Lauren Knott, published in the British learned journal Memory) commented that the current scientific understand- ing of recollective experiences "is that they are fragmentary, contain amnesic gaps, information is often out of order, contain guesses and often contain incor- rect details. . . . All memories, regardless of whether they are for traumatic or mundane events that occur in child- hood, adolescence or adulthood, are subject to decay, forgetting, interference and other memory mechanisms that L E G A L E T H I C S O P I N I O N @philipslayton SCOTT PAGE The unknowable truth The justice system can never fully uncover the truth, but that doesn't mean it shouldn't try By Philip Slayton ow do we know the truth? Can we ever know what really happened? The idea that the truth is knowable underpins our society. It helps justify government. It makes the administration of justice possible. To administer justice, we have to be able to find out who did what. In civil matters, the rough-and-ready "balance of probabilities" is a proxy for the truth. In a criminal trial, with much more at stake, the test is "beyond a reasonable doubt." The laws of evidence and procedure mediate between what is alleged and what may be true. For a long time, lawyers have had a high level of confidence in this approach. You could say the legal profession relies on it. It is our ethical cornerstone. H HOW DO WE ETHICALLY PROCEED IF WE CAN'T DISCOVER THE TRUTH? MUST WE ENDURE A KIND OF EXISTENTIAL PARALYSIS? THAT CAN'T BE THE RIGHT ANSWER.

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