Truth in the court house

 

If we wonder why notions of truth and falsehood have become more vague, more relative, more flexible, our legal system is an important influence to consider. For those who are not familiar with this system, taking part in a legal proceeding can be ethically breathtaking. At the heart of this shock is the realization that even though establishing truth and exposing lies is the stated goal, it is not only one. Nor are “truth” and “lies” understood to mean in court what they do on the street. From a legal standpoint, any lie that isn’t told under oath is no lie at all. Legally speaking, truth is what evidence and testimony corroborate. If enough evidence and witnesses can prove that water is dry and dust wet, then legally speaking, dust is wet and water dry.

For all practical purposes, truth inside a courtroom consists of whatever a judge or jury decides is true. Whether legally established truths are factually accurate is beside the point. As any lawyer will tell you, legal truths do not always correspond to actual truths. There is even a concept in American jurisprudence called “legal fiction,” which, according to Black’s Law Dictionary, refers to “an assumption that something is true even though it may be untrue.” In their own way, lawyers are no less indifferent than therapists to literal truth. Bill Clinton once observed that in their conflicting testimony before the Senate, neither Anita Hill nor Clarence Thomas was a liar; each simply told the truth as he or she saw it. What a layperson might consider a lie, said Clinton, a lawyer such as he might see as simply an “alternative version of reality.” Clinton’s two terms as president were like an eight-year seminar in the difference between truthfulness as most people understand that term and truthfulness as a legal concept. The culmination was Clinton’s assertion that his testimony denying he’d harassed Paula Jones was “legally accurate.”

It is this type of comment that makes so many nonlawyers think that lawyers inhabit their own ethical universe. As one character in Linda Bames’s novel Big Dig says of another, “I wasn’t sure about his honesty, but what the hell, he was a lawyer so it didn’t count.” This is a bum rap. It’s not as though lawyers are born with defective honesty genes. Rather, they take part in a system of law that virtually requires its participants to work at ethical cross-purposes. On the one hand, they are expected to engage in a search for truth, and not suborn perjury. At the same time, they must vigorously advocate the case of clients even when this means manipulating facts, if not actually condoning lies. That forces lawyers to operate on a two-tier ethical system (assuming they are personally honest): one of their own, and a second on behalf of clients. 

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Few contemporary lawyers would disagree. A bedrock principle of legal counsel is that their job is to represent clients, not to judge them. Judgment is the job of the court.

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In a unique critique of the adversarial system of justice, Frankel wrote that it was a rare trial in which anyone involved wanted the whole truth to be revealed. What’s worse, Frankel added, “many of the rules and devices of adversary litigation as we conduct it are not geared for, but are often aptly suited to defeat, the development of the truth … . The process often achieves truth only as a convenience, a byproduct, or an accidental approximation.”

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A propensity to dissemble characterizes politicians left, right, and center. This is more a personality trait than a political tendency. Former Nebraska senator Bob Kerrey thought the real source of political artifice was a craving to be liked. That and a hunger for attention. An uncommonly high proportion of narcissists can be found among those who run for office. (Theodore Roosevelt’s daughter once said her father wanted to be the bride at every wedding, and the corpse at every funeral.) Indifference to truthfulness is a known narcissistic trait.

To politicians, most of their falsehoods are mere petty fibbery, lies of exuberance so insignificant that they hardly even qualify as lies. “Rhetorical excesses and leaps of faith,” Al Gore called them. It’s been suggested that Gore’s well-known tendency to take liberties with facts was a result of growing up in a political family (his father was a longtime senator from Tennessee), where stretching the truth was not considered any great sin. Among themselves, politicians take a certain philosophical approach to matters of honesty. In their own minds this doesn’t mean they lack this trait, simply that they define it differently than their average constituent does (alt.ethics again). By this ledger-book standard, if you tell the truth more often than not and are an upright sort of person, you’re honest. 

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When politicians double as celebrities we care less about their moral standards than their glamour quotient. A good head of hair can attract more votes than a sound set of ethics. (Quick: Who was the last bald president?) Winning smiles can impress us more than the truthfulness of words that emerge from those smiles. It is well known to those who study deception that the way we judge lies depends on who told them and how we feel about that person. In this sliding scale of judgment, the lies of liars we like are understandable. Those of liars we don’t like are contemptible.

Impression Management

 

When we’re in “image is everything” mode, it’s hard to resist the temptation to sweeten that image a bit. One survey found that 90 percent of a large sample of Americans said they told little lies about themselves on a regular basis. Most often these fibs lower ages, raise incomes, bolster credentials, and enhance accomplishments.

For the most part, no harm done. Who cares if we gussy up our ID a bit?

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Sprucing up one’s background with dubious data has become as common as tucked tummies and transplanted hair. Its motivation dips from the same well: a desire to be better than real. Petty fibs allow us to wear psychic outfits beyond our means. They’re a grown-up version of “let’s pretend.” Bs and Cs we got in college become As and Bs over time. The 200 game we bowled in high school creeps upward to 250. A retort we wish we’d made now is one we did. In his play The Wild Duck Ibsen called fibs such as these “life lies” (translated from livslognen, a term he coined). They’re not white ones told to protect someone else’s feelings or to smooth a rough social situation. These are unprovoked deceptions meant to make the deceiver look better.

It’s a rare man or woman who doesn’t inflate his or her height. Since so few of us are happy with our God-given feet and inches, the figure we report to the world tends to be a hodgepodge of fact, fantasy, and whatever we think we can get away with. After being told a fanciful height once too often by a subject, Philadelphia Daily News reporter Rose DeWolf said, “You think people lie about their age? Ha! Height is worse.”

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Among a group of job seekers who were measured after they’d recorded their height on an application, 100 percent—ten out of ten—had rounded up by an inch or more. And this is not just an oversight. Another study found that a group of women who were warned in advance that they would be measured reported their heights far more accurately than a second group who weren’t warned but were measured.

In Hollywood, where height matters, one casting director made a practice of estimating how tall actors were as they walked through the door because she knew she couldn’t trust the figure on their resumes. This document is where life-lying becomes art form. Resumes are not just a record of what we’ve done. They also tell the world what we wish we’d done.

Puffery is an art form in America

 

Puffery is an art form in the United States. This is for two reasons in particular: (1) it is a civilization of immigrants and their descendants who like to think they control not only their own destiny but their own identity, and (2) Americans are hypermobile, continually reintroducing themselves to others, often succumbing to the temptation to re-create their past in the process. Opportunities to touch up a self-portrait arise every time Americans move, as one in five do every year, and half do every five years. “For much of his life,” memoirist Cyra McFadden wrote of her itinerant father, rodeo announcer Cy Taillon, “he was engaged in the game of inventing himself—adding to what was true and what was desirable, stirring counter-clockwise and serving up the mix.”

Obviously, deception about the self (and lots of other things) is not limited to Americans, or to our era. The wish to seem better than real is eternal and universal. Jacob, after all, wanted to be more like Esau. Odysseus made up a new identity for himself whenever an opportunity arose. The context of American life makes it easier to engage in this type of flimflam, however. It could hardly be otherwise in a country populated primarily by immigrants and their descendants. Excepting those who were already here and the ones brought in chains, America was settled by those shaking off Old World restrictions. Along with their previous lives, they left behind anyone who had known them in that life. Those who arrived in this country were in a position to wipe the slate clean. They felt free—duty-bound even—to re-create themselves, shedding inconvenient facts along the way like a snake molting old skin. Here Albert Einstein, a cold husband and indifferent father in Europe, could reintroduce himself as a warm humanitarian after arriving alone in New York. Occidental Petroleum founder Armand Hammer made up a personal past doing relief work with starving peasants and initiating business projects in Russia. Meg Greenfield’s father successfully transformed himself from a first-generation son of Russian immigrants who grew up in a Philadelphia slum to something resembling a well-bred English gentleman. In her book Washington, Greenfield observed that “at least since Yankee Doodle tried his scam, Americans have been engaged in the business of personally reinventing themselves—enthusiastically, with varying degrees of fraudulence (or ingenuity, if you prefer), and often to perfectly good purpose.”

Their penchant for mythmaking, and receptivity to each other’s tall tales, doesn’t make Americans less moral than those they left behind, simply more opportunistic. If no one around you knows your actual history, why be candid about it? Who was going to blow your cover? From the moment when immigrants Americanized their names at a port of entry, or had this done for them, how could it not occur to them that this was a whole new ball game. Gorodetsky a little hard to pronounce? How about Gordon? Shakishavili a bit of a mouthful? Try Shaw. If names could be changed that easily, what else might be changed as well? Age? Occupation? Family origins? America was a land of unlimited possibilities, in many senses of the word.

Lying and Society

 

In large, complex societies, honesty takes on added weight because so many transactions take place between strangers. At the same time, we’re descended from those who felt little need to tell the truth to those they didn’t recognize. As we saw in the last chapter, for most of human history, lying to outsiders was not only condoned but sanctioned. Integrity helped us deal with our own, duplicity with outsiders. As a result, the will to deceive unfamiliar human beings may be one of our genetic memories. Paradoxically, a will to be honest may also be an inherited trait. Darwin himself believed that because it strengthened communal bonds, truthfulness had survival value.

Members of tribes that emphasized honesty were most likely to have heirs. Us. From our distant ancestors we have inherited complementary urges to be honest and dishonest. Depending on the context, both tendencies helped us survive: honesty for our own kind, deception for everyone else. Just as dealing with familiar faces promotes a tendency to tell the truth to this very day, so may contact with a stranger trigger an ancient impulse to lie. This bifurcated heritage is reflected in the variable ethical standards that are still commonplace. Subjects in one of Bella DePaulo’s studies said they lied during 28 percent of their conversations with friends, 48 percent with acquaintances, and 77 percent with strangers. Even in Tipton, Iowa, Alan Wolfe found an insider-outsider ethical dichotomy alive and well. The strong emphasis residents placed on being honest with each other weakened when questions arose about telling the truth to those who lived elsewhere, or to large corporations, or the IRS. “The moral instinct of Tiptonites is to value honesty more when the recipient of one’s honesty is a close neighbor or friend,” Wolfe discovered, “than when it is a stranger.”

If it is true that dealing with people we don’t know, or don’t know well, triggers a tendency to deceive inherited from our ancestors on the savanna, then as more and more of us deal with a rising numbers of strangers (or those who feel like strangers), an urge to tell lies is increasingly unleashed. At the very least our inhibitions about being dishonest are lowered. On the receiving end, anyone we meet could be lying at any time about anything, and we would have no way to know. (As we’ll see in a later chapter, the human capacity to detect lies is quite limited.) Paul Ekman—who has devoted his career to studying deception—believes it is unwise to trust one’s assessment of another person’s honesty without having some knowledge about that person. One proven enhancer of lie-detection accuracy is knowing how a suspected liar has behaved in two or more situations.

Ekman has an interesting theory about why most of us can’t detect lies very well. In our ancestral environment, he speculates, there was not much opportunity to deceive one another. We lived cheek by jowl in groups where consequences for being deceitful were severe. As a result, there was little incentive to be dishonest, or opportunity to unmask those who were. Lies would not have been told often enough for lie catchers to hone their skills. In such a context the adaptive value of a lie-telling talent or a complementary ability to catch liars would be low. The context in which most of us now live is just the opposite. Opportunities to lie are constant today, the means to disguise lies plentiful, and the penalties for being caught meager. At worst, those revealed as liars can simply move on—to another place, a different spouse, new friends, who have no idea that they are known liars.

One could hypothesize that the looser human ties are in any social context, the more likely it is that those who live there will deceive and be deceived. And even if we aren’t being hoodwinked in such settings, it is easy to suspect that we are, because we just don’t know.

Lie Regulations

 

All societies must reconcile the fact that lying is socially toxic with the fact that nearly all their members engage in this practice. Every belief system does its best to regulate dishonesty with taboos, sanctions, and norms. Few such systems claim that every lie is always wrong. This would put them too far out of synch with facts on the ground.

Therefore a major task for all belief systems has been to determine when it’s permissible to tell a lie.

Those participating in this search have usually taken three basic approaches: (1) lying is wrong, period (Augustine, Wesley, Kant); (2) it all depends (Montaigne, Voltaire, Bacon); (3) there is something to be said for a good lie well told (Machiavelli, Nietzsche, Wilde).

Greek gods were celebrated for their skill at deceiving humans and each other. In The Odyssey, Odysseus the dissembler is a far more intriguing character than Achilles the truth teller. When Athena, no slouch herself in the deception arts, approaches Odysseus upon his return to Ithaca in disguise, she is favorably impressed by the persuasive yarns he spins about himself. “Crafty must be he,” Athena tells Odysseus, “and Knavish, who would outdo thee in all manner of guile.”

Even early ethicists who warned against telling lies seldom did so on absolute terms. Plato, who condemned lying on general principles, nonetheless thought it was crucial for the guardians of his ideal republic to propagate “noble lies” so that the masses would accept their place and not disturb social harmony. Across the Adriatic, Cicero’s On Duties emphasized the need for truth telling among free men. In Cicero’s world, lying to a slave was not considered dishonest.

Most societies leave the question of determining which lies are justified to their clergy. Over the millennia theologians of all stripes have occupied themselves with explaining why some lies are worse than others. Even though the fourth of Buddhism’s five precepts admonishes the faithful to abstain from lying, Buddhists distinguish between major lies (such as feigning enlightenment), minor lies (making things up), and lies told to benefit others (as when a doctor conceals the truth from a patient who is dying). The latter in particular are not considered much of a problem.

Like Buddhism’s fourth precept, Hindu ethics proscribe lying. The seminal text Laws of Manu admonishes Hindi never to “swear an oath falsely, even in a trifling matter.” That seems clear enough. In its next passage, however, Manu’s laws advise that “there is no crime in a [false] oath about women whom one desires, marriages, fodder for cows, fuel, and helping a priest.”

This is how it goes in most theology. Admonitions not to lie are followed by a list of circumstances in which lying is permissible. Muhammad said his followers should always be truthful, except when a lie was necessary to preserve domestic harmony, save their life, or keep the peace. The Talmud also notes a need to keep peace as justifying falsehood. According to Judaism’s civil and religious laws, a pious scholar is always to tell the truth except when asked about his marital relations, or to avoid sounding boastful, or when telling others how well he has been hosted might burden his host with too many other guests.

Both Testaments of the Bible, and the Old Testament especially, combine condemnations of dishonesty with admiring accounts of successful deception: Abraham claiming that Sarah was his sister, not his wife; Jacob passing as his brother Esau to win his father’s blessing (and inheritance); Egyptian midwives rescuing Hebrew children by telling Pharaoh that their mothers were so vigorous that—unlike Egyptian women—they gave birth before the midwives arrived. 

We do tell more lies

 

I think it’s fair to say that honesty is on the ropes. Deception has become commonplace at all levels of contemporary life. At one level that consists of “He’s in a meeting” or “No, that dress doesn’t make you look fat.” On another level it refers to “I never had sexual relations with that woman” or “We found the weapons of mass destruction.” High-profile dissemblers vie for headlines: fabulist college professors, fabricating journalists, stonewalling bishops, book-cooking executives and their friends the creative accountants. They are the most visible face of a far broader phenomenon: the routinization of dishonesty. I’m not talking just about those who try to fib their way out of a tight spot (“I wasn’t out drinking last night; I had to work late”) but casual lying done for no apparent reason (“Yes, I was a cheerleader in high school”).

Ludwig Wittgenstein once observed how often he lied when the truth would have done just as well. This Viennese philosopher has many modern disciples. The gap between truth and lies has shrunk to a sliver. Choosing which to tell is largely a matter of convenience. 

We lie for all the usual reasons, or for no apparent reason at all. It’s no longer assumed that truth telling is even our default setting. When Monica Lewinsky said she’d lied and been lied to all her life, few eyebrows were raised. 

Our attitudes toward lying have grown, to say the least, tolerant. “It’s now as acceptable to lie as it is to exceed the speed limit when driving,” observed British psychologist Philip Hodson. “Nobody thinks twice about tattered condition of contemporary candor is suggested by how often we use phrases such as “quite frankly,” “let me be frank,” “let me be candid,” “truth be told,” “to tell you the truth,” “to be truthful,” “the truth is,” “truthfully,” “in all candor,” “in all honesty,” “in my honest opinion,” and “to be perfectly honest.” Such verbal tics are a rough gauge of how routinely we deceive each other. If we didn’t, why all the disclaimers?

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Even though there have always been liars, lies have usually been told with hesitation, a dash of anxiety, a bit of guilt, a little shame, at least some sheepishness. Now, clever people that we are, we have come up with rationales for tampering with truth so we can dissemble guilt-free. I call it post-truth. We live in a post-truth era. Post-truthfulness exists in an ethical twilight zone. It allows us to dissemble without considering ourselves dishonest. When our behavior conflicts with our values, what we’re most likely to do is reconceive our values. Few of us want to think of ourselves as being unethical, let alone admit that to others, so we devise alternative approaches to morality. Think of them as alt.ethics. This term refers to ethical systems in which dissembling is considered okay, not necessarily wrong, therefore not really “dishonest” in the negative sense of the word.

Even if we do tell more lies than ever, no one wants to be considered a liar. That word sounds so harsh, so judgmental. Men in particular are extremely careful to avoid giving other men any opportunity to say “You callin’ me a liar?” Once those fatal words are spoken, it’s hard for dialogue to continue without fists being thrown, or worse. The word lie itself is both a description and a weapon. 

According to the Oxford English Dictionary, this term “is normally a violent expression of moral reprobation, which in polite conversation tends to be avoided.” That’s why we come up with avoidance mechanisms: rationales for dishonesty, reasons why it’s okay to lie, not nearly as bad as we once thought, maybe not so bad after all. The emotional valence of words associated with deception has declined. We no longer tell lies. Instead we “misspeak.” We “exaggerate.” We “exercise poor judgment.” “Mistakes were made,” we say. The term “deceive” gives way to the more playful “spin.” At worst, saying “I wasn’t truthful” sounds better than “I lied.” Nor would we want to accuse others of lying; we say they’re “in denial.” That was sometimes said even of Richard Nixon, the premier liar of modern times, who went to his grave without ever confessing to anything more than errors of judgment. Presidential aspirant Gary Hart admitted only to “thoughtlessness and misjudgment” after reporters revealed Hart’s dishonesty (not only about his sex life but about his age). When, during a primary debate, John Kerry referred to a nonexistent poll that put his popularity well above Hillary Clinton’s, an aide later said Kerry “misspoke.” And it isn’t just male politicians who parse words this way. In the course of writing The Dance of Deception, Harriet Lerner asked women friends what lies they’d recently told. This request was invariably greeted with silence. When Lerner asked the same friends for examples of “pretending" they had no problem complying. “I pretended to be out when my friends called,” said one without hesitation.

A direct admission of lying (“I lied”) is rare to nonexistent. Those willing to make such a bold statement cast doubt on anything they have said in the past and anything they will say in the future. This is why, rather than open the floodgates and accept lying as a way of life, we manipulate notions of truth. We “massage” truthfulness, we “sweeten it,” we tell “the truth improved.” Britain’s cabinet secretary Sir Robert Armstrong once created an uproar with his droll admission that he’d been “economical with the truth” (a phrase he borrowed from Edmund Burke). Since then, all manner of creative phrasemaking has been devoted to explaining why lies are something else altogether. My favorite depicts a liar as “someone for whom truth is temporarily unavailable.”

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Honesty was once considered an all-or-nothing proposition. You were either honest or dishonest. In the post-truth era this concept has become more nuanced. We think less about honesty and dishonesty per se and more about degrees of either one. Ethics are judged on a sliding scale. If our intentions are good, and we tell the truth more often than we lie, we consider ourselves on firm moral ground. If we add up truths and lies we’ve told and find more of the former than the latter, we classify ourselves honest. This is ledger-book morality. Conceding that his magazine soft-pedaled criticism of advertisers, one publisher concluded, “I guess you could say we’re 75 percent honest, which isn’t bad.”

In terms of values, this approach denotes a significant shift. Previous generations tended to think you were virtuous or you weren’t. Morality was not assessed by tallying assets and debits on a spreadsheet of virtue and hoping to come out ahead. Another analogy would be that we have shifted from set menu to buffet style ethics: picking and choosing which ones to abide. This approach allows for the “compartmentalizing” at which Bill Clinton was said to excel. Abraham Lincoln would not be impressed. 

The Post-Truth Era