Every now and then, a judge will declare that a trial is “a search for the truth,” or, in one drunk driving case, a sober search for the truth. The judge continued, “In the search for truth, no man has yet been harmed,” quoting a Stoic philosopher who was evidently never a criminal defendant, or if he was, had no priors.
What would a trial look like if everybody had to search for the truth?
Prosecutor: Ladies and Gentlemen, the truth is we really don’t know whether the defendant is guilty. Oh, sure, he’s been indicted, but we all know that a grand jury will indict a ham sandwich. It’s just that somebody has to pay for this terrible crime.
Defense counsel: Objection!
Judge: Overruled. Ladies and gentlemen, the truth is that when I overrule an objection by defense counsel, it’s because I don’t like her. She’s as charming as a porcupine on a bad hair day. Plus, I have an opinion about her client’s guilt. How could I not, when I presided over the suppression hearing?
Prosecutor: (continuing) I had to spend days rehearsing my witnesses, a pathetic bunch of crybabies and losers, to make them get their stories straight. My police witnesses, of course, don’t remember a thing about the incident except that every gun is in plain sight, every defendant has glassy eyes and emanates the odor of alcoholic beverages, and every hassle with a civilian results in substantial pain and physical impairment to the cop, forcing him or her to take three years of paid leave.
Defense counsel: Ladies and Gentlemen, the truth is my client is a truculent hooligan who thinks he knows more about the law than I do because he has 49 misdemeanor convictions. The rest of my opening statement will be taken verbatim from “Mauet on Trial Technique.”
Judge: Ladies and Gentlemen, remember how we spent two weeks on jury selection because we had to kick off everyone who couldn’t accept the “beyond a reasonable doubt” standard? The truth is that nobody in their right mind ever asks for that kind of certainty. “Beyond a reasonable doubt,” what does that even mean? (collapses with laughter).
Defense counsel: (joining in) And you know why my client doesn’t testify? Because he did it! Yes, he took up two seats in the subway!
Prosecutor: Ha, ha, ha, truly a bullshit crime. Your tax dollars at work. But you’d better convict, or my boss won’t get re-elected.
As Alan Dershowitz explains, there’s truth. . . and then there’s truth.
Appellate Squawk 
We can’t handle the truth!
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No trials are not about a search for the truth. In Tehan v. United States, 328 U.S. 406 (1966), holds that competing interests may override the truth-seeking function in order to “preserv[e] the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulder the entire load.’” Id. at 415 (emphasis added). Similarly in Wardius v. Oregon, 412 U.S. 470 (1973) while discussing pretrial discovery obligations it is explained that “The State may not insist that trials be run as a “search for truth” so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses.” Id. at 475. In fact, the modern jury trial goes to great lengths to hide the truth from the jury— particularly when it comes to the defendant’s evidence. For example, modern accuser-advocate privileges and rape-shield statutes intentionally and specifically exclude relevant evidence of innocence because a competing interest—the accuser’s privacy—is elevated above the trial’s truth-seeking function. See also Wis. Stats. sec. 906.11(1) (allowing the control of evidence to “protect witnesses from . . . embarrassment”).
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Perhaps, then, it should be described as an exercise in constrained optimization, trying to maximize “truth” subject to the constraints of limited evidence, human fallibility, and the rules of justice.
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“In sum, the judgment should be reversed and a new exercise in constrained optimization ordered.”
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A “search for the truth” does not mean that truth will be found, rather some facsimile of the truth. Although, I do find it odd that testifying witnesses swear to the “truth, the whole truth, and nothing but the truth” when there is no way the “whole truth” is ever presented in these one-sided question/answer dialogues with direct- and cross-examinations.
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