Which of these is “true?”
“Veredictum, quasi dictum veritas; ut judicium quasi juris dictum. A verdict is, as it were, the saying of the truth, in the same manner that a judgment is the saying of the law.” https://legal-dictionary.thefreedictionary.com/Veredictum (last visited March 17, 2022).
The jury’s job is not to determine the truth of what happened …. Rather, a jury’s job is to determine whether the State has proved the charged offenses beyond a reasonable doubt.
Why is this question posed? Every lawyer has heard or used words in a closing argument urging the jury to ‘find the truth’ or ‘speak the truth’ by its verdict. And that tracks the Latin origins of the word, as explained at https://legaldictionary.lawin.org/veredictum/
Meaning of Veredictum
(Law Lat. from vere, truly, or verus, true, and dictum, a saying) . In old English law. A verdict; a declaration of the truth of a matter in issue, submitted to a jury for trial.
And speaking the truth is often linked to which side’s witness are telling the honest/accurate version of the case. As one treatise illustrates,
The judge will charge you that the defendant comes into court with the presumption of innocence in his favor, but the truth does not change. Today you must decide the truth, and to do that you must decide which of two people is telling you the truth. As I told you at the very beginning, this is a case of whom you believe—it’s that simple. If you believe the child is telling you the truth, you must find the defendant guilty. But if you believe she is lying to you, and her father is telling the truth, then you must find the defendant not guilty. The word “verdict” in Latin means truth. I ask that you return a verdict that you already know in your hearts and your mind is the truth, a verdict of guilty.
2 Sexual Assault Trials Scope (2021)
Yet there is a valid if not compelling argument that a prosecutor may run afoul of rules of professional conduct and the Due Process command that the state bear the burden of proof if the jury is urged to “speak the truth” with its verdict. That analysis is at the core of a March, 2022 decision of the Washington Supreme Court.
What did the prosecutor argue? In a child abuse case, the child [R.G.M.] detailed the abuse and another minor [S.R.] testified for the defense, claiming the complainant had admitted that the accusation was false. The defendant [Crossguns] also testified and denied any abuse had occurred. In closing, the prosecutor posited the case as one version being true and one a lie, a decision the jury would have to make:
He pointed out S.R.’s and R.G.M.’s conflicting testimony about their conversation and told the jury, “Somebody’s lying. It’s your job to determine who’s lying. Is [R.G.M.] lying or is [S.R.] lying? And that’s your job entirely.” When discussing R.G.M.’s and Crossguns’s conflicting testimony about whether any abuse occurred, the prosecutor said, “[Y]ou have the testimony of [R.G.M.] on one hand, and [Crossguns’s] testimony on the other hand. Somebody’s not telling the truth, and, again, you’re going to have to make that decision. Who is lying and who is telling the truth.” I
State v. Crossguns, 2022 Wash. LEXIS 156, *6
The Washington Court then reviewed its precedent. “The jury’s role is to weigh the evidence to determine whether the State has met its burden. This task is independent of whether the jurors think any witnesses are lying or telling the truth.” Id., *18-19.
As to arguments similar to that in the Crossguns case, the Court had ample precedent:
It is improper for a prosecutor to ask the jury to decide who was telling the truth. We have also held that it is misconduct for a prosecutor to plead for the jury to “‘speak the truth’” in reaching its verdict. The Court of Appeals has held that it is misconduct for a prosecutor to tell the jury it must find that the State’s witnesses are lying in order to acquit a defendant.
State v. Crossguns, 2022 Wash. LEXIS 156, *19
The Due Process concern? “Inviting the jury to decide a case based on who the jurors believe is lying or telling the truth improperly shifts the burden away from the State. It is misconduct to tell a jury that it must conclude one person is lying and one person is telling the truth in order to reach its verdict.” Crossguns *19
Crossguns himself did not prevail, as there was no timely objection. And other courts have not been receptive to this type of challenge. More than 20 years ago it was rejected by the California Supreme Court. Addressing a prosecutor closing that “there is no reasonable doubt in this case unless you believe [defendant] is telling the truth,” the Court found no error. “Viewed in context, it merely invited the jury to compare defendant’s explanation of the evidence with the prosecution’s while stressing to the jury that the prosecution had proven its case beyond a reasonable doubt.” People v. Earp, 20 Cal. 4th 826, 864 (1999).
Nonetheless, be wary. It may be fair to say “speak the truth that we have proved our case” but anything closer to “speak about which story is true” may run into trouble, particularly when prosecuting a criminal trial.