Trials as designed are not, or are at most coincidentally, searches for truth; rather, they are tools for assessing whether a particular burden of proof has been satisfied. This article compiles research showing the effect of telling jurors that a trial is a search for the truth, language that has been shown to cause them to disregard the burden of proof and instead focus on whether they individually have concluded what the truth is. Written from a criminal defense perspective, it offers arguments and strategies for challenging the use of “search for the truth” language by judges or prosecutors.
March 15, 2017
University of Pittsburgh Law Review, Vol. 79, No. 1, 2017 (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2916389