Monday, February 27, 2012

I Lied. And That's the Truth

Herewith (I'm trying to sound like a lawyer), what is surely one of the stupidest statements any lawyer has willingly committed to print.

The problem is not merely a literary one; the question of the identity of the author of the [Shakespeare] plays is also one of evidence, and therefore within the province of lawyers.
Of course.  Because our expertise knows no bounds. After all, everything is a matter of evidence.  All and always.  Everything we know or purport to know.  At some level it rests on evidence.  The evidence may be good or bad, relevant or irrelevant, tested or not tested.  Doesn't matter.  It's evidence just the same.
  • The potential existence of the Higgs Boson?  Reasoning from evidence leads many, maybe most, particle physicists and cosmologists to believe it exists and that it will be discovered (i.e., revealed through evidence derived by experiment) at CERN.
  • That dinosaurs pre-existed and then died out before people?  A ton of paleontological and archaeological and geological evidence.
  • That people and dinosaurs co-existed?  Evidence of the age of the earth drawn from the pages of the Bible and from preachers.
  • What Plato thought about how an ideal state should be run?  Evidence from the Republic.
  • The dates of Cleopatra's reign and whether she did or did not actually commit suicide by asp?  Evidence from earlier historians who themselves relied on evidence from records and stories and rumors.
  • Descartes existed?  From the evidence of the fact that he could doubt it.
  • Iraq's weapons of mass destruction? Evidence.
Oh, and that OJ did (or didn't) kill Nicole?  Yep.  Evidence.
And that Shakespeare authorship thing, too. 
From which we determine belief.  Which may or may not bear some relationship to what we can call, albeit even at that there's some ambiguity, objective fact.*
I've said before, repeatedly, that trials aren't about truth.  Trials are about proof.  And proof is whatever a jury (or in some cases a judge or panel of judges) finds sufficiently convincing from the evidence.  The lawyers present and challenge that evidence, of course, and to that extent and in that limited way, and constrained by a set of rules developed over the centuries dealing with evidence is the province of lawyers.  But beyond that?
Witness A: I saw the light and it was red.
Witness B: I saw the light and it was green.
Lawyers are supposed to be able to make arguments that will help convince the jury whether A or B is correct.  But lawyers have no special expertise (neither, of course, do jurors**) at actually determining whether A or B is right.  And absent some meaningful objective information (e.g., film which actually shows the light at the relevant moment, and even that could be manipulated), there's really no way to know for sure and with accuracy.  It might be that one or the other is lying or mistaken or was deceived.  Hell, they could both be wrong.  The light may not have been working, or it might have been yellow.  They could even both be sort of right if both the red and green were both on.
Again, lawyers have no special skill at sifting through evidence and figuring out what's true.  At best, their special skill is at presenting and challenging certain kinds of evidence (what comports with the Rules of Evidence as applied to the particular jurisdiction and proceeding) for the purpose of convincing - of getting the jury to accept at proof, regardless of truth.
So no, lawyers have no particular claim on exploring who wrote the plays attributed to Shakespeare.
Yet, there's that claim.  It's the last sentence of the four-paragraph "Forward" by one Tappan Gregory, self-described Editor in Chief of Shakespeare Cross-Examination: A Compilation of Articles First Appearing in the American Bar Association Journal, a slim volume the Journal published in 1961.
Despite how it may appear at this point, I'm not actually writing a post about the hubris of lawyers (though god knows that I could).  Rather, this is about truth and fiction and evidence.  And, really, it's about this guy.
He's the Honorable Joseph G. Will, Judge of the Seventh Judicial Circuit Court in Florida.  According to the court's website, "He currently hears criminal cases at the S. James Foxman Justice Center in Daytona Beach. Judge Will also presides over adult drug court in Daytona Beach and DeLand."  Which is really all I know about him.
He may be hard-nosed or a soft touch.  He may be a stickler for the rules or willing to bend them in the interests of justice.  He may be a strict constructionist or loosey goosey when forced to interpret a statute or constitutional provision.  He may treat defendants with respect or with contempt.  He may or may not play golf.  Republican or Democrat.  I know none of that.
But I know this.  There are many judges, too many, who believe, just automatically, what the police say.  They take the evidence and from it conclude - always and ever - that the police officer on the witness stand is telling the truth.
Why in the world would a cop lie, even stretch the truth?  Surely there can't be any benefit to an officer in making suppression less likely or conviction more likely.  It's all the same to the officer, isn't it?
In fact, no, it's not.  Cops want their busts to stand up.  They want the folks they perceive (rightly or wrongly) to be bad guys to get convicted.  They want to be understood to be good at their jobs, and that doesn't include getting cases dismissed.  They're working for respect and promotion, too.  And those don't come from having the folks they arrest walk out of the jail because the evidence wasn't good enough or the search wasn't constitutional or the confession was coerced or whatever.
When they lie, and they do (hell, we even have a name for it, testilying), it's not ordinarily to frame someone they think innocent or that they haven't been able to catch.  It's to make a weak case, or a constitutionally iffy one, stronger. 
And that's when they lie under oath.  On the stand.  Because there are other contexts where they can lie to their hearts' content. In fact, they're encouraged to do so.
Which brings us back to Judge Will.  And to his order last week in State of Florida v. David Alan Beauprez
It's an ordinary enough thing.  As the judge says, "The facts are simple enough."  Police got an anonymous tip about drug dealing at Beauprez's home.  So a couple of cops went to the house, knocked on the door, and when his "elderly mother" answered, they told her a lie.  They were there, they said, "because of a '911 disconnect."  And they wanted to check the house to be sure everyone was OK.  Mom let them in.  She did or did not give them permission to search the house (conflicting testimony, don't you know), but search they did.  And they found drugs.  And David is the defendant and there was this suppression hearing where the issue was whether mom consented to the search.
There is a widespread belief that police cannot benefit from directly lying to a person in order to obtain leave to search or to elicit a confession or to encourage a crime.  That widespread belief is entirely false. Judge Will put it this way.
The uninitiated are often astonished to learn that the police may lie to a suspect in the course of an interview to enhance the opportunity to gain a confession.  Courts have held that it does not violate the Constitution for the officer to tell almost any tale to deceive the suspect.  In many instances law enforcement may use others to perpetuate the falsehood without sanction.
Many are also surprised to learn that the police may craft totally false and elaborate scenarios designed solely to place citizens in a position where the citizens may act in accord with their propensity to commit a cimre.  Officers, collaborators, and informants may participate in schemes that bring the opportunity to commit a crime to the citizen's doorstep to test his resolve and arrest him if he fails.
It leaves many scratching their heads to discover that the police may come without probable cause to the door of one's home and tell an outrageous lie to gain access to the home without legal ramifications.  The state is free to use the bounty of the intrusion to prosecute the homeowner and her guests for crimes discovered in the course of this journey into the heretofore private sanctum of the home.  The practice has evolved into a police procedure called the "knock and talk", which was utilized in the instant case.  In their quest to cross the citizen's threshold, the police need only create a sufficiently frightening, tempting, or threatening lie to trick the citizen into opening her door.  Once inside, the government is free to make arrests based upon criminal conduct observed in plain sight and may gain permission to further search the person and property of the citizen.
But the law that permits those things has consequences, the judge said.
While it is certainly true that these techniques are very successful in arresting some lawbreakers, there may be a standard to which our society and our government should aspire that is loftier than simple expediency.  Dishonesty is seldom without consequences for any of us.  When the government lies to its citizens, though, the consequences are dire.
Fine words, but only words.  We've seen the like before.  Judges admonish prosecutors and police for various sorts of misbehavior, explain how terrible it is and how troubled they are.  Then they deny suppression, let in the evidence, refuse the mistrial, affirm the conviction.  In effect, they teach that vile behavior by the government has no negative consequence.
But sometimes Judge Will rises up and says enough.  Sure, he says,
the state prevails on legal grounds on the issue of the prevaricating conduct of the officer.
But that's the law.  A poor thing, twisted and bent to assure that the police can do no wrong even when they do wrong.
There are also the facts, the things determined by the evidence (see how I cleverly return to the nominal subject here).  In a suppression hearing, the judge decides the facts.  In this case, the question was who to believe.  And Judge Will laid it out.
The mother of the defendant was not shown in any manner to be a person unlikely to tell the truth.  The officer, on the other hand, clearly lied to gain access to her home.  A person who admits his lie in the opening seconds of his testimony before the court cannot be heard moments later to say that his first lie was his only lie.
And so it is.  If you're honest.

Lawyers have no special expertise at ferreting out the truth from the evidence.  Neither do judges.  I don't know whether the officer told the truth or the mother did.  Neither does Judge Will.  Maybe they both shaded it some.  But he had to decide what to believe, and he did what he's supposed to - decided it from the evidence presented in court.  The officer was an admitted liar.  No evidence that mom lies. 
There are many lessons here.  Lessons about judicial integrity.  Lessons about systemic corruption and the corrosion of the social contract.  Lessons about the corrosive effect of a whatever-it-takes, end-justifies-the-means approach to law enforcement.

Evidence doesn't necessarily take us to truth.  But viewed fairly it can, like a lever and a fulcrum, move mountains.  As, just maybe, can an admonition when it's accompanied by action.
As we all know, a little boy may falsely call "wolf" only so many times before no one listens. A simple statement, it is hoped, that does not fall upon deaf ears in the law enforcement community.
Judge Will suppressed the drugs.
Perhaps that was a windfall for David Alan Beauprez.  Absolutely it was a windfall for the rest of us.
Oh, and Shakespeare's plays were written by Shakespeare.  There's not a shred of actual evidence to the contrary.

Beauprez Order

H/t Nick F.
*Yes, there's also fabulation, pure unadulterated creation based on nothing.  And there's psychotic delusion, of course, though the delusions themselves may be to the psychotically deluded evidence (albeit faulty) of all sorts of things.
** Or judges or police officers.


  1. Excuse my French, but this is freaking awesome. This evidence supports the belief that Judge Will is Honorable.

  2. Now if he and other judges would just take that next honorable step! When the individuals who the cops are tying their CRIMINAL conduct on manage to SEE THOUGH THE LIES.

    They should have a right to remove them from this earth using whatever force is necessary to acomplsih it!

    1. "You have to make them lose to make them learn" as I've quoted Cathy Cook a number of times in this blawg.

      Really, I'm all for holding the government and its agents accountable for misconduct, and I really don't believe that the ends justify the means, but death as a punishment for lying in order to get around the 4th or 5th Amendment - or for perjury - seems disproportionate.

  3. For most people, this post would constitute two, maybe three, separate ones, being so jammed with important ideas as to strain the limits of blawging. Don't be so stingy with your thoughts.

    This is clearly the early front-runner for Best CrimLaw Blawg Post of 2012.

    1. I was making up for missed days, so I crammed in a week's worth of posts.

  4. I agree this is a great post, and I agree with the Shakespeare thing, though I'm no student of the issue as you apparently are. But I have to quibble a little.

    First, you're going too far when you say "Lawyers [and judges] have no special expertise at ferreting out the truth from the evidence." That is exactly the same as saying that doctors have no special expertise at healing. It is true that neither doctors nor lawyers are infallible in their areas of expertise, but that doesn't mean they have no special expertise at all. And as a matter of my own personal empirical observation, lawyers as a group are much, much better at ferreting out the truth from evidence than people who are not lawyers. With some notable exceptions, of course. I don't think it is wise to undercut the entire profession like that. If lawyers serve any legitimate social purpose, it's odd that lawyers themselves so frequently undermine it. If lawyers do not serve any legitimate social purpose, we should abolish the profession.

    As to the larger point of epistemology you are making - that is, the assertion that nothing is true, or even if it is, the truth is unknowable - that remains a tired 20th century dogma that no one has ever really believed, including you. You're such a good writer and thinker that you can make it seem almost reasonable, though. Almost.

    1. Sorry, lawyers don't. Doctors, we hope, know something about how to heal. Lawyers (and judges if they were trained as lawyers) know something about how to present evidence under the rules and how to argue about it. They don't know shit about how to tell who's actually telling the truth (if anyone is) as opposed to lying or being mistaken. Or at least, they don't know any more about it than anyone else does.

      Do lawyers serve a function? They help draft contracts. They recover and help prevent recovery of damages for injured people. They prosecute and defend. Are these things (or any of them) of any value? Sure. They have social utility. Maybe they (or some of them) serve and advance some absolute good. Perhaps they do god's work. Or Satan's. None of that requires that they have any particular skill at determining how the car went off the road, whether the oral agreement was for 5,000 widgets or 50,000, or whether it was the Colonel in the library with the candlestick.

      As for the epistemological issue, I don't claim there is no truth, just that in absolute terms most truths are not knowable. Truths are, of course, knowable within a closed system. (For instance, in the base 10 arithmetic system we use, 2 + 2 = 4.) But the world is not a closed system, or at least not one with limited rules that can be definitively determined. There's evidence which supports and evidence which contradicts (and sometimes can do something very like disprove), but actual truth is ultimately unknowable.

      Jean-Luc Godard, the great French film director, once said "Film is truth at 24 frames a second" by which he meant, roughly, that the best we can ever get is a fragmented sort of truth, bits and pieces with gaps that could thoroughly undermine what we have.

      Still, and despite epistemological ambiguity (and physical ambiguity if you believe the discoveries of quantum physics), we function just fine on a day-to-day basis because the ambiguities don't really make any difference.

    2. Of course, I wasn't talking only about witness credibility. I agree that no one has any magic about that. Evidence is often a lot more than conflicting testimony, though.

      I have to say it saddens me that you think this way, mainly because you are selling yourself so far short.

      I've followed your blog long enough to have some sense of how your mind works. I have little doubt that if I picked 500 people at random, plus you, put everyone in a room and subjected them to some objective test to see who could sift through evidence to get to a correct conclusion, you would come out on top. And if there were ten lawyers in the group, the lawyers would all be at or near the top.

      The epistemological agnosticism is not trivial for lawyers, or at least trial lawyers. For most people and in most situations, it's true that it doesn't really make any difference, but for lawyers involved in real disputes between real people finding the truth, or at least which of competing versions is more likely to be true, is not just an abstract problem.

    3. "More likely to be true" is altogether different from "factually true." I'm not sure lawyers have any particular expertise at probabilities, either, but I'm not doubting that, at least in broad brush terms, it's possible to figure out what's probably so. And certainly we have (or should have) some skill at convincing juries of what's likely (and what isn't). But as I keep saying, those are issues of proof, not truth.

  5. ...death as a punishment for lying in order to get around the 4th or 5th Amendment - or for perjury - seems disproportionate.

    I know it seems that way, but give it a chance. Consider the evidence...

    This is one of your better efforts, and I enjoyed it. Thanks!

  6. Wow! This judge should be nominated to the US Supreme Court!

  7. Is there a list of persons whom police officers are allowed to lie to?

    For example, we know they can lie to an ordinary citizen, but can they lie to :

    another police officer?

    a federal judge?

    a priest?

    a doctor?

    Are there any limitations?

    1. Can't lie under oath. Can't lie to internal affairs. Nobody can lie to the FBI.
      Can they lie to their priests? That's a religious issue not a legal one.
      Can they lie to their physicians? Depends on whether they want to get better.
      The more serious question is whether they get in trouble for lying when the law says they can't. Has it happened? Yeah. Does it often happen, even when they get caught lying under oath? Not on your life.

  8. Even if it is permitted for cops to lie to, say, suspects, there are at least two issues which arise out of this.

    First, why aren't the police required to advise people as part of any Miranda warning that they can lie to them? Also, that they can not only lie but they have been known to fake forensic reports, exhibits or the like as part of such deceits?

    Second, there are examples of the police lying to witnesses in order to turn them against a suspect. Under what legal theory is that permitted? Particularly when those witnesses will be called to give evidence?