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w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 8 17 inevitably lead to constructive errors and memory distortion . . . Human memory is highly suggestible and malleable." The study went on to discuss in detail how in some types of judicial proceedings, for example, criminal trials dealing with historical sexual abuse or those relying on eyewitness identification, a proper scientific understanding of memory may be weak or absent, leading to wrong decisions and injustice (although the authors accept that the situation has been improving as sensitivity to the issue increases). The philosopher William James wrote in 1890, "False memories are by no means rare occurrences in most of us . . . Most people probably are in doubt about certain matters ascribed to their past. They may have seen them, may have said them, done them, or they may only have dreamed or imagined they did so." In modern times, the neurologist Oliver Sacks (and many others) have echoed this analysis. Sacks writes, "There is . . . no mechanism in the mind for ensuring the truth . . . We have no direct access to the historical truth . . . no way by which the events of the world can be directly transmitted or recorded in our brains; they are experienced and constructed in a highly subjective way . . ." Novelists have always understood this. I have written before in these pages, "If you want to understand how difficult it is to establish the truth in a courtroom, read Arthur & George, a novel by Julian Barnes about the conviction and impris- onment of someone for a crime he did not commit. It will tell you important things that you won't find in a textbook on evidence." In Thus Bad Begins, a recent book by the great Spanish writer Javier Marías, a central character, Edu- ardo Muriel, comments early in the nar- rative: "It's illusory to go in pursuit of the truth, a waste of time and a source of conflict, sheer folly. And yet we can't not do it. . . . Even the person concerned may not know what the truth is. . . . People tell the facts as it suits them to and come to believe their own version. . . . All we're left with is guesses and approximations. . . . It's just a ridiculous waste of time. . . . And yet, and yet . . ." What are we lawyers to do? How do we ethically proceed if we can't discover the truth? Must we endure a kind of exis- tential paralysis? That can't be the right answer. If it were, the courts would have to be disbanded. The work of the world still needs to be done, as best we can. Eduardo Muriel says that seeking the truth is "just a ridiculous waste of time," but he feels compelled to add, "And yet, and yet . . ." The answer is we must proceed with great caution and rely on as many safe- guards as possible. We live in an age of wild allegations, rocket-fuelled by social media, when detailed accounts of incidents that are decades old acquire standing just by being uttered. To quote William James again, "They may have seen them, may have said them, done them, or they may only have dreamed or imagined they did so." Philip Slayton's latest book, How To Be Good: The Struggle Between Law and Ethics, was published in October. Visit gpllm.law.utoronto.ca Questions? gpllm@utoronto.ca Apply today. ONE YEAR | PART-TIME | FOR LAWYERS AND BUSINESS LEADERS Master the Law. Canada's leading law school offers a graduate degree in four unique streams: Business Law Canadian Law in a Global Context Innovation, Law and Technology Law of Leadership ntitled-6 1 2017-07-12 1:19 PM

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