Justice as the pursuit of the truth

On my bench is a quote that guides me as I preside over criminal and civil trials: "Our courts are not gambling halls but forums for the discovery of the truth." (People v. St. Martin (1970) 1 Cal.3d 524, 533.) After almost 20 years of trial practice and over 13 years as a judge, I often wonder how close we come to that pursuit.

I remember when I first took the bench and was assigned to family law, a judicial mentor told me in tongue and cheek: "you know in family law there's a different burden of proof--it's the lesser of two perjuries." For that assignment, the biggest challenge for me was not learning the new law but wrestling with my frustration of having to make decisions at times with insufficient or unreliable information. At least as a prosecutor, I could manage the investigation and meet the witnesses myself, all with the goal of finding and then presenting the truth in court.

As a new judge, I admired how my colleague in dependency court, who assumed the bench at the same time, was able to make measured decisions based upon investigative reports with stringent legal requirements before a child could be taken away from their parents. By contrast, in family law, a child can be taken away from a parent resulting in significant consequences upon the word of another parent on an ex-parte or emergency basis. While there are good reasons for the process, that word we rely on to approve the request may turn out later to be fabricated or unsubstantiated.

Once I returned to my comfort zone in criminal law, I had further cause to examine the lofty purpose of finding the truth from a different perspective. Though most cases resolve, I know that a decision to plea may not represent the full truth of the charge but rather be based on an assessment of the risks of going to trial. While presiding over trials, I learned to check myself from second guessing why attorneys were making certain choices in the presentation of their cases, mindful that I am no longer a practitioner and do not know the cases like they do. But I did observe that the outcome of a case is best rooted in truth when we have prepared and effective advocates from both sides who comply with their legal and ethical obligations. I do believe that juries, with unanimity required from 12 people from different walks of life who have been properly screened for cause and instructed, can be good deciders of the truth. However, there are times that I find I may have come to a different conclusion than my trial jurors. We should be able to admit that we both could be wrong.

Whoever is the fact finder, there are obstacles to our determination of the truth. Our decisions are still only as good as the information upon which they are based; and to a certain extent the skill with which the evidence is presented. There may be unchecked biases that guide how we see the evidence and make our decisions. Witnesses may lie, and reliance on demeanor to assess credibility, as explained by Malcolm Gladwell in his book "Talking to Strangers," can lead to the wrong conclusion. Witnesses may be honestly mistaken for a variety of reasons. Unfortunately, digital evidence provides no surety of the truth. With the advent of deepfakes--AI-generated fictionalized text messages, recordings, photos, social media postings and even videos threaten our fact-finding mission.

These concerns are not a wholesale indictment of our system. I am proud to serve in the judicial capacity in the pursuit of the truth and believe our formalized legal procedures and required burdens of proof aid in the process. With judges as gatekeepers of the evidence and attorneys practicing competently and ethically, the determinations in court have a better chance of being grounded on truth.

Additionally, the appellate and habeas process act as further checks on our truth-finding mission. As our learning and laws evolve, positive changes can be made in our process. For instance, since 2023 jurors have been given an important instruction containing tools to overcome implicit bias. (CALCRIM 209.) Perhaps at some point we will fashion a cautionary instruction pertaining to credibility assessments based upon demeanor, or even digital evidence.

In 2022, I was part of a program with the Inns of Court that examined the loss of truth in our culture and what the legal system can do about it. We discussed the ethical obligations of both attorneys and judges to facilitate truth in the administration of justice. We examined whether there is currently a loss of truth, or whether our loss was even more profound--a loss of faith in our institutions that we rely on for finding the truth. Our takeaway was to increase our efforts to build trust in the rule law by promoting competency, ethics, civility and professionalism in our practice. We ended the program with a musical number, re-writing the lyrics of the Paul Simon's great song "Slip Sliding Away."

(THE TRUTH IS) SLIP SLIDING AWAY

Slip sliding away

Slip sliding away

Seems we all think we know it

But truth is slip sliding away

What can I believe, who can I trust

I've put my faith in the law, but it ain't always just

The judge and jury, don't always get it right

And all lawyers do the bidding of the clients, it's all about the fight

Slip sliding away

Slip sliding away

People expect us to find it

But truth is slip sliding away

So let's keep the trust, and let the law lead the way

Cause people come to us for truth and justice, each and every day

Slip sliding away

Slip sliding away

We can't lose sight of our calling

Because truth is slip sliding away