Is the Criminal Process About Truth?: A German Perspective (Panel III: Truth, The Jury, And the Adversarial System) (Federalist Society 2002 Symposium on Law and Truth‪)‬

I. INTRODUCTION: THE IMPORTANCE OF KNOWING THE TRUTH Finding the troth is a difficult task under any set of circumstances, but finding the truth in the context of crime and punishment is almost impossible. Even if we assume that an objective "reality" exists and that human beings are generally able to determine and to describe it in some adequate form so that we can reasonably distinguish between truth and falsehood, there is hardly an arrangement less likely than the criminal process to bring out the "truth." The reasons are obvious: crime is not something the culprit or the victim has reason to brag about (and if either does, he is unlikely to say the truth), and the impending consequences of an emergence of the truth are (at least for one party) quite unwelcome. The result is a strong incentive for passively or actively concealing relevant facts. The difficulty of determining the truth about crime stands in marked contrast with society's strong interest in doing so: crime, especially serious crime, disturbs the peace of the community and, if unresolved, raises the threat of repetition. Knowing exactly what has happened, who the culprit is, and why he committed the offense, is a necessary prerequisite for any attempt to re-establish social peace through justice. The determination of truth is indispensable for yet another reason--criminal sanctions are society's most severe expression of moral blame. (1) It is therefore imperative that criminal sanctions be imposed (only) upon those who are in fact guilty.