It can be argued that the notion of the trial as a “search for the truth” is incompatible with the adversarial system. After all, the adversarial system – except possibly as governed by the ethical commands prosecutors face to “seek justice” – is one based upon zealous representation and the desire of each side to advantage its position. And where the distribution of resources between the two parties is unequal, “true adversary testing is virtually impossible.” Findley, ADVERSARIAL INQUISITIONS: RETHINKING THE SEARCH FOR THE TRUTH, 56 N.Y.L. Sch. L. Rev. 911 (2011-2012).
And at a more fundamental level, a trial is never a search for the truth but a contest as to whether a burden of proof has been met. Indeed, the questions are radically different – who was the killer versus was X proved to be the killer at the requisite level of certainty.
Notwithstanding these conceptual differences, it is not uncommon for a jury to be asked to “speak the truth,” as occurred in the below closing in a criminal prosecution:
[I]n order for you to find the defendant not guilty, you have to ask yourselves or you’d have to say, quote, I doubt the defendant is guilty, and my reason is blank. A doubt for which a reason exists. If you think that you have a doubt, you must fill in that blank.
… .
… I want to talk to you right now [about] a Latin term, “verdictum.” The Latin term “verdictum” I’m told is the Latin root for the English word “verdict.” The literal translation of “verdictum” into the English language is to speak the truth. Your verdict should speak the truth.
In this case, the truth of the matter, the truth of these charges, are that Aaron Olson is guilty of Robbery in the First Degree, Kidnap in the First Degree, … and Rape in the First Degree, which is the same for Tony Emery, for the offenses that he committed on February 27th, 2006…
Members of the jury, I ask you, go back there to deliberate, consider the evidence, use your life experience and common sense, and speak the truth by holding these men accountable for what they did.
State v. Emery, 174 Wash. 2d 741, 750-51, 278 P.3d 653, 659 (2012).
Beyond the arguments that asking the jury to seek and then speak the truth is contrary to its actual duty – to state whether a burden of proof has been satisfied – using ‘seek the truth’ or similar language may actually have a cognitive effect of reducing the burden of proof. Such is the contention of newly published research.
In THE BATTLE OVER THE BURDEN OF PROOF: A REPORT FROM THE TRENCHES, University of Pittsburgh Law Review, Vol. 79, No. 1, 2017 (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2916389 ), author Michael Cicchini reports on a series of studies where mock jurors – all reading the same case file – received instructions with or without ‘search for the truth’ language. The resulting differential in terms of verdict is stark:
| BURDEN OF PROOF INSTRUCTION | CONVICTION RATE |
| A clearly unconstitutional “search for the truth” instruction with no mention of the beyond a reasonable doubt standard | 29.6% |
| A legally proper reasonable doubt instruction with no “search for the truth” language | 16% |
| A legally proper reasonable doubt instruction that concludes with a mandate “not to search for doubt” but to “search for truth” | 29.0% |
Perhaps more troubling was the finding from subsequent research – that jurors given “search for the truth” language came to believe it was proper to convict even when they determined that a reasonable doubt as to guilt existed.
Cicchini is explicit in the purpose of his article: to “assist criminal defense lawyers and judges” in responding to prosecution arguments that seek to debunk challenges to ‘speak the truth’ and ‘search for the truth’ presentations in a criminal trial. But the article serves at least one additional purpose – a reminder that words count, and count heavily in influencing decision-making; and this is especially true and problematic when understanding abstractions such as the reasonable doubt standard, the purpose of a trial, and the role jurors are supposed (and obliged) to play.