Truth-finding: The Role of Counsel and the Court

“What is truth?” asked Pontius Pilate of Jesus, just before he made the politically expedient decision to throw Jesus under the bus. In our justice system we try to be less nonchalant. Do we always really discover the truth? No, but much, much more often than not, and our system is better than all the alternatives. Here’s how it works.

The key to understanding the court’s role as truth-finder is that there are no “facts” until the court decides what the facts are. Until facts are “found”, they exist only as “evidence”. In a jury trial, the jury is the fact-finder, in a “judge alone” trial, it is the judge who assumes that role. In either case, the judge then takes the facts as found and applies the most suitable law.

The role of counsel has two parts: first, to present all of the cogent evidence in the most understandable and persuasive way possible, tie it all together in a coherent and persuasive story, and to shine the relevant law on the evidence so as to persuade the court that his or her case passes the relevant legal tests better than that of the adversary. The second part of counsel’s role is in diminishing the other side’s case, pointing out to the court the flaws and weaknesses in the other party’s evidence, law, and reasoning.

The trial judge (and when relevant, the jury) must listen and watch carefully, assessing the credibility of the witnesses and their evidence, judging not just demeanour but how everything fits together. Long-standing rules of evidence, precision instruments to weigh and evaluate evidence both as to admissibility and weight, are used to ensure that our approach to truth-finding is uniform, predictable and fair.

Does justice ever miscarry? Of course it does. Rarely, but any such case is one too many. Occasionally a lawyer will drop the ball and fail to introduce important evidence or fail to draw the court’s attention to the relevant law. Occasionally a jury will make a perverse finding. Occasionally a judge will zig when she should have zagged in fitting the right law to the facts. This is why we have appeal courts.

Appeal courts rarely interfere with a trial court’s finding of fact, the general rule being that it will overturn the finding of fact only if it can’t see how a reasonable person or jury could have arrived there. More often, the appeal court will find that the “court below” applied the wrong law or misapplied the right law. (To be sure, I’m afraid the Americans are now playing fast and loose with these principles.)

The court of appeal can impose its own judgment, adjusting damages in civil cases or varying sentencing in criminal cases. Just as often, though, and especially in criminal matters, the case can be sent back to be re-tried. And, as often as not in such cases, both counsel can read the tea leaves and will engineer a settlement.

Does this work all the time and every time? No, we are all human. But the system of justice, at least in Canada, is as balanced and predictable and fair as we can make it, and much like safety engineers, every time we encounter a glitch or a travesty, we tweak and change to make the process even better and safer going forward.