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.