Judicial truth vis-à-vis actual truth

The “four truths” on the impeachment trial of Vice President Sara Duterte I wrote about last Monday elicited a lot of comments. Thus, I will revisit the first truth—”judicial truth.” Apropos is the wisdom of the late United States Chief Justice Warren E. Burger, who observed that “[t]he very nature of a trial [is] a search for truth.” Yet, every seasoned practitioner knows that the search for judicial truth does not always end in actual truth. The question, then, is: Why does judicial truth sometimes diverge from actual truth?

TO ANSWER, LET US FIRST DISTINGUISH. Judicial truth is the version of the facts established by evidence that has been—pursuant to the legal rules on evidence—presented, admitted, and ultimately accepted by the court. Actual truth, on the other hand, is what truly happened, regardless of what has been proven or unproven per the legal rules.

Ideally, these two truths should be identical, and every judge strives to make them so. In reality, however, justice is administered by fallible human institutions and by fallible—if not scheming—individuals. Indeed, the road to the discovery of truth is arduous and invariably fraught with errors and, sadly, machinations.

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THIS DIVERGENCE BETWEEN THE TWO TRUTHS stems from three sources:

First, from witnesses. Our courts reconstruct past events from those who have—or claim to have—seen, heard, or experienced them. Yet, the Supreme Court acknowledged in People v. Nuñez (Oct. 4, 2017, per SAJ Marvic MVF Leonen, Third Division) that the “frailty of human memory is a scientific fact,” and, therefore, is susceptible to various influences, including the witness’ opportunity to observe the perpetrator at the time of the crime.

For instance, an eyewitness, amid the fleeting chaos of a crime, may lack sufficient time to accurately identify the person snatching a bag.

Worse, some witnesses may deliberately perjure to protect an ally or to destroy an adversary. Others may simply disappear, or succumb to the toxic culture of “lusot, lagay, lakas” (evasion, bribery, power).

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Second, from the lawyers. I have often written that a court can only be as good as the advocates appearing before it. A prosecutor may file, recklessly or cunningly, an information that fails to allege the ultimate facts constituting the elements of the already complex crime of plunder. Or a defense counsel may fail or neglect to object to inadmissible evidence. These failures, whether intentional or not, distort the factual picture before the judge.

Third, from the magistrates. Even with honest witnesses and brilliant lawyers, judges can still err in their appreciation of the facts and/or their application of the law. In my July 19, 2015 column (“How cases are decided”), I contrasted two schools of judicial thought.

On one hand, John Austin’s analytical theory viewed a decision as the product of the equation Facts × Law = Decision (F x L = D). Thus, if the evidence plainly shows that Jose killed Pedro, the judge simply applies the law on homicide. However, if the judge convicts Jose of murder despite the prosecution’s failure to conclusively prove treachery at the inception of the attack, this would constitute a grave misapplication of the law.

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On the other hand, Roscoe Pound argued that judges are influenced by social realities and human experience. Thus, he theorized that the legal equation is: Stimuli × Personality of the Judge = Decision (S × P = D). Pound recognized that while the law and the facts serve as the primary stimuli, a judge’s reasoning can be consciously or unconsciously swayed by considerations of public interest, or personal afflictions that cloud judgment, or what I have long cautioned against as the “Plague of Ships: kinship, relationship, friendship, and fellowship.”

INDEED, THE GAP BETWEEN JUDICIAL TRUTH AND ACTUAL TRUTH remains one of the greatest challenges confronting every justice system. Tragically, and quite infuriatingly, this gap victimizes the marginalized and the powerless who lack the resources to ensure their actual truth survives the rigorous crucible of the courtroom. The Constitution and our laws, conceived as shields for them, can—through the creeping intrusion of human frailties, errors, and machinations—become the very sources of their injustice.

However, to succumb to cynicism is to surrender the rule of law. These imperfections must not extinguish our respect for the judiciary. Quite the contrary, they remind us why due process, credible witnesses, competent counsel, and noble judges are indispensable.

Ultimately, our courts possess no divine omniscience to reconstruct the actual truth. Judicial truth, therefore, is not a finished monument, but a continuing pursuit of the actual truth.

To narrow the chasm between these truths, we must relentlessly continue demanding from our judges what I have called, since I was an incumbent, the “Four Ins: Independence, Integrity, Intelligence, and Industry.” And from our lawyers, “TIP: Trust, Integrity, and Probity.” Only then can we ensure that the search for truth does not merely end in a judgment but culminates in a free and prosperous society under the rule of law.

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