Saturday, June 13, 2009



We believe what we see with our own eyes. At least, skeptics and empiricists do. When it comes to everyday belief, our senses reign. More particularly, our vision reigns. We must be present to observe something to say for certain that it happened. And if we are not present to observe something, we will only believe it if we can visualize it in our minds as “having reasonably or likely happened.” That is a more complicated endeavor than merely seeing something. But we do it all the time. Our minds constantly alternate between belief and unbelief. Belief reflects our conscious decision whether or not something happened, or whether something exists. We constantly weigh whether or not we believe things. We nurture our beliefs. We express both trust and judgment with belief. If we deem something “worthy of our belief,” we believe it. If not, we say it is “not credible” and dismiss it.

Our eyes and ears have limited range. Our noses and skin nerves have an even more limited range. For better or worse, our immediate ability to sense things is strictly limited to the relatively small size of our bodies. In that light, we have precious limited ability to truly “perceive” things in order to “truly” believe them. Yet our observations and experiences provide us the most reliable pathway to “truth.” We know something is true when we perceive it ourselves. But because our senses are so limited, there are very few things in life we can verifiably believe “true.” For everything else, we must rely on reports. We must accept others’ accounts about “what happened,” then decide for ourselves whether to believe them. Unlike “sensory belief,” this is “second-hand belief.” It does not directly involve the senses. It requires far more intellectual effort than merely seeing something and remembering it.

In general, we can say that we are not bound to believe anything that we do not perceive. If our senses do not directly observe an event, condition or act, there is no way we can say it “actually happened” or “it actually exists.” Rather, we decide whether to believe things we do not observe. Still, we readily believe things we do not observe as long as we satisfy ourselves that the report is “reliable.” What makes stories reliable? This is the core of evidence law. Evidence law aims to regulate the information juries hear in order to provide them only those details that are “most worthy of belief.” In the law—as well as in life—the question for any listener is: What is the truth? That, of course, is the monumental inquiry. And it is not easy, because truth is a tricky subject.

Truth relates to belief. Leaving metaphysics to one side, truth in the law means “what actually happened” in a particular case. That sounds simple, but it is actually immensely complex. After all, “sensory truth” and “sensory belief” only exist in the minds of those who personally experienced an event or perceived a condition. They were “there.” They know “the truth.” But for everyone else—and that means the judge, jury and lawyers—truth is a matter of belief. They were not there. Thus, they must decide for themselves what the “truth” is. It is not what “actually happened.” Only those who perceive something know that. For the listeners, truth becomes a simple question of belief. More to the point, it becomes a subject for judgment. Listeners only believe what they decide “probably happened.” That may be completely different from what “actually happened.” In short, truth in court means nothing more than what the jury is willing to believe.

My evidence professor in law school should have focused on sense and belief before he began teaching us all the Byzantine rules that govern whether particular information is “admissible as evidence” in a court case. If he had begun with belief—and what makes people believe whether something “actually happened”—it would have rendered all the rules easily understandable. The Federal Rules of Evidence methodically screen what information juries may hear before deciding whether to believe a story. In the end, it all comes down to belief. The evidence rules merely channel the information that leads to a jury’s decision whether or not to believe something. No one in the jury has access to “sensory truth” when listening to each side’s story. Rather, like any listener, it must rely on reports. The evidence rules monitor the substance of those reports. In short, they make sense and perception dominant. They allow jurors to hear about what witnesses saw, because vision is supposedly most worthy of belief. Yet the rules carefully restrict a jury’s access to reported language (“hearsay”), because language can distort as much as it can enlighten. And when someone’s life or fortune is on the line, the evidence rules presume that a witness will more likely distort words for his advantage than candidly report what he actually heard. In sum, jurors are free to believe whatever they want. The evidence rules simply try to feed them the “most reliable information” before they decide what is “true.”

But there is more to truth than what a jury decides. Human beings constantly struggle with truth because so much happens that they cannot perceive. They have no choice but to evaluate others’ words. In life, there are no evidence rules to screen out supposedly “unreliable” reports about events, acts and conditions that occur beyond our sensory range. We want the truth, but there is no way we can say it “actually happened.” We must believe things despite imperfect information. We make decisions on imperfect information every day. We judge things “true” even if we cannot verify them.

Still, there are certain institutions that help us believe things we do not perceive. The law provides a ready example. In fact, the law wields a disproportionately large influence on our willingness to believe things we do not perceive. In our legal system, for instance, we theoretically subject suspected criminals to exhaustive procedures designed to affix “truth” to their alleged misdeeds. The State begins by accusing the suspect. Is the accusation “true?” Does the verbal form match what “actually happened?” That is the question. Obviously we cannot know whether it is true for the same reason we cannot know whether anything is true if we are not present to observe it. Yet legal machinery does its utmost to assure us that accused suspects “truly” broke the law. It requires prosecutors to prove “beyond a reasonable doubt” that the suspect committed every single element of the crime. By that requirement, the law seeks to assure the public that the criminal “truly” did what the State says he did, even though the jury never perceived the act. This machinery really has no greater claim on truth than anyone else who was not there to perceive the suspect. Yet it reassures us. It inscribes truth on the offender. After all, truth is persuasive because it reflects belief. If we believe that someone committed a crime, we feel justified in punishing him. Still, just because the law inscribes “an official truth” on a criminal does not verify that he actually did what the State says. We weren’t there. Our senses did not perceive what we believe. To say that the criminal “truly” committed a crime, then, really represents a judgment, not a perception.

Truth is essential to maintain government authority. It is no accident that the State expends maximal effort to affix truth to a criminal’s acts. In so doing, it reminds the people that it not only has the power to punish, but it also has the power to say what “actually happened” without ever perceiving the event. The law, in other words, manipulates public belief and controls truth. Most people readily believe that a convicted criminal did the act for which he received punishment. After all, from a listener’s perspective, there is no reason to doubt the jury’s findings. The listener was not there to witness the criminal’s act. He has no “sensory access” to truth. So he relies on “official channels” to truth. If the State says he committed the crime, and the jury found “beyond a reasonable doubt” that he did, then suddenly the charge becomes “true,” although no one saw it. Listeners comfortably conclude that a convicted criminal did act as charged. They cannot say they know for sure. But they rely on the State’s truth-branding authority. They reward the State with their belief. This is a substantial reward. For when people believe a report, they implicitly approve and respect the person who gives it. The State, then, maintains its control by inspiring belief in its listeners. If the State can cause people to suspend their skepticism and believe things they never see, it truly wields power. In sum, “actual truth” does not really matter. Again, the real question is belief, not “what actually happened.”

Should “actual truth” really matter? I would like to think it does. But that may be asking too much. We cannot sense everything. In fact, considering all the events, acts and conditions that occur and have occurred on this planet, we sense virtually nothing. Everything else comes to us second-hand. We hear, we weigh, we judge, we believe. We make our own truth based on the information before us. Yet many vie for our belief, including the State. We are not bound to give it, but we do. Procedures and rituals awe us. Trials and executions write truth on their subjects. We believe things as long as the State takes the time to grind through the ritual. Does it make an event any more likely to have happened than it would have without the ritual? Not really. If we weren’t there, we can’t really know. Every report is tainted by the bias and perspective of the person who gives it. But we can choose whether or not to believe reports. The State has numerous mechanisms intended to win our belief. And they are quite effective. After all, when we hear that a person has a criminal record, do we believe he committed the crimes, even though we never met him and never saw him do anything? Yes. We have no sensory access to truth in this situation, but we assuage our doubts because the State has written truth upon the man.

In virtually every case, we judge truth. We rarely know it.

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