![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2017\/03\/search-for-truth-300x214.jpg\")
<\/p>\n<\/p>\n
It can be argued that the notion of the trial as a \u201csearch for the truth\u201d is incompatible with the adversarial system.\u00a0 After all, the adversarial system \u2013 except possibly as governed by the ethical commands prosecutors face to \u201cseek justice\u201d \u2013 is one based upon zealous representation and the desire of each side to advantage its position.\u00a0 And where the distribution of resources between the two parties is unequal, \u201ctrue adversary testing is virtually impossible.\u201d\u00a0 Findley, ADVERSARIAL INQUISITIONS: RETHINKING THE SEARCH FOR THE TRUTH, 56 N.Y.L. Sch. L. Rev. 911 (2011-2012).<\/p>\n
And at a more fundamental level, a trial is never a search for the truth<\/em> but a contest as to whether a burden of proof has been met.\u00a0 Indeed, the questions are radically different \u2013 who was<\/em> the killer versus was X proved to be <\/em>\u00a0the killer at the requisite level of certainty.<\/p>\n Notwithstanding these conceptual differences, it is not uncommon for a jury to be asked to \u201cspeak the truth,\u201d as occurred in the below closing in a criminal prosecution:<\/p>\n [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.<\/p>\n \u2026 .<\/p>\n \u2026 I want to talk to you right now [about] a Latin term, \u201cverdictum.\u201d The Latin term \u201cverdictum\u201d I’m told is the Latin root for the English word \u201cverdict.\u201d The literal translation of \u201cverdictum\u201d into the English language is to speak the truth. Your verdict should speak the truth.<\/p>\n 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, \u2026 and Rape in the First Degree, which is the same for Tony Emery, for the offenses that he committed on February 27th, 2006\u2026<\/p>\n 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.<\/p>\n State v. Emery<\/u>, 174 Wash. 2d 741, 750-51, 278 P.3d 653, 659 (2012).<\/p>\n Beyond the arguments that asking the jury to seek and then speak the truth is contrary to its actual duty \u2013 to state whether a burden of proof has been satisfied \u2013 using \u2018seek the truth\u2019 or similar language may actually have a cognitive effect of reducing the burden of proof. Such is the contention of newly published research.<\/p>\n 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<\/a> ), author Michael Cicchini reports on a series of studies where mock jurors \u2013 all reading the same case file \u2013 received instructions with or without \u2018search for the truth\u2019 language.\u00a0 The resulting differential in terms of verdict is stark:<\/p>\n <\/p>\n Perhaps more troubling was the finding from subsequent research \u2013 that jurors given \u201csearch for the truth\u201d language came to believe it was proper to convict even when they determined that a reasonable doubt as to guilt existed.<\/p>\n Cicchini is explicit in the purpose of his article: to \u201cassist criminal defense lawyers and judges\u201d in responding to prosecution arguments that seek to debunk challenges to \u2018speak the truth\u2019 and \u2018search for the truth\u2019 presentations in a criminal trial.\u00a0 But the article serves at least one additional purpose \u2013 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.<\/p>\n","protected":false},"excerpt":{"rendered":" It can be argued that the notion of the trial as a \u201csearch for the truth\u201d is incompatible with the adversarial system.\u00a0 After all, the adversarial system \u2013 except possibly as governed by the ethical commands prosecutors face to \u201cseek justice\u201d \u2013 is one based upon zealous representation and the desire of each side to<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,11],"tags":[],"coauthors":[238],"class_list":["post-1938","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"\n\n\n
\n BURDEN OF PROOF INSTRUCTION<\/strong><\/td>\n CONVICTION RATE<\/strong><\/td>\n<\/tr>\n \n A clearly unconstitutional \u201csearch for the truth\u201d instruction with no mention of the beyond a reasonable doubt standard<\/td>\n 29.6%<\/td>\n<\/tr>\n \n A legally proper reasonable doubt instruction with no \u201csearch for the truth\u201d language<\/td>\n 16%<\/td>\n<\/tr>\n \n A legally proper reasonable doubt instruction that concludes with a mandate \u201cnot to search for doubt\u201d but to \u201csearch for truth\u201d<\/td>\n 29.0%<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n