A tale of truth in modern America. .

• Author: Otis, William
• Position: Roundtable: The Lawyer's Responsibility to the Truth - Federalist Society 2002 Symposium on Law and Truth

A fellow running for sheriff in a small southern town gave a stump speech at a Fourth of July picnic. At the end, the crowd applauded and wandered away, except for one man. The candidate, seeing a potential vote, approached the man and asked whom he was planning to support. The man said, "Well, I like you okay, but you're my second choice." The candidate asked who his first choice was. The man replied, "Anyone else."

And that about describes the standing of truth in the law. It's not that we're against Mr. Truth. We often claim to like the old chap. It's just that so often, and of course for the best and most refined of reasons, we prefer anyone else.

The stated justifications for the truth so frequently occupying the runner-up position in our legal system are well known, as you would expect, since we lawyers created them. Often, for example, we hear that procedural rights must be protected. (1) Thus, as the Supreme Court held in Dickerson v. United States, Miranda's exclusionary rule, (2) a rule that puts the truth off-limits to the jury, carries the day even in a case where it is known that the defendant spoke voluntarily. (3)

In addition, some relationships are deemed more important than finding the truth. For example, the marital privilege, a sensible enough idea most of the time, holds sway even when a marriage literally occurs as a pit s4top on a witness's way to a grand jury, as it did in one of my cases; (4) the government was unable to ask even a single question of the blushing bride.

To give one last example the expanding reach of the attorney-client privilege allows clients to trust their lawyers to help them conceal whatever, in a moment of foolish candor, they might have let slip. In fact, lawyers have a duty to do just that under what are called "ethics rules." (5) Although these rules prescribe strict confidentiality, they do not exempt lawyers from the statutory ban on directly suborning perjury. Thus was born the mutual dance of "don't ask, don't tell" that has become the subsurface minuet in so many lawyers' offices.

Some might think it odd to believe that a relationship of authentic trust can be built on a shared, if unspoken, understanding that authentic trust is impossible. And, of course, a good deal of the time there simply is no trust. Clients intuitively understand that a person who will dissemble for them might sooner or later dissemble to them. Readiness to cut a corner here and another there is not a character...