ARC TO UNITIVE JUSTICE NO. 9: FROM DECEPTION TO HONESTY
Deception: the act of causing someone to accept as true or valid what is false or invalid; giving a misleading or untruthful account of conduct, intentions or events.
Honesty: the act of giving a fair and truthful
account of conduct, intentions or events.
The Punitive System Tends to Distort the Truth
In a court of
law, each witness is sworn to tell the truth. While this ritual is an important
part of the process, the system is complex and must accommodate competing, and
sometimes contradictory, interests. When other considerations are more
important, truth is sacrificed.
In a criminal case, for example, the prosecutor must carry the burden of proving the defendant’s guilt with no help from the defendant. As a result, even a guilty defendant may plead "not guilty" in order to shift this burden to the prosecutor/state.
The Fifth Amendment to the U.S. Constitution provides that no defendant in a criminal case may be compelled to be a witness against himself. Accordingly, not only may a plea of “not guilty” be untrue, the rules of evidence permit an entire category of statements called “admissions against interest” to be beyond the scope of permitted interrogation. Even in a civil case, a party does not have to answer questions about certain protected admissions against interest, another example of the protection against self-incrimination being placed above discovering the truth in the most direct way.
The rules regarding when the truth is supposed to be told and when a party is permitted to avoid telling the truth are complicated. If an admission against interest is made to someone who is not within the scope of privileged or protected communication, it can be used as evidence of guilt. As a result, having the skill to catch the defendant or adverse party in out-of-court admissions against interest that are admissible is a skill some prosecutors and civil trial attorneys seek to develop. This is how the game is played and one reason it costs a lot to hire the necessary legal expertise to win in court—guilty or not.
In the punitive system, honesty may help the opponent win, hasten one’s defeat or increase the punishment. As a result, attorneys readily admonish their clients to never say things like “I’m sorry” or “I made a mistake”—to anyone. To avoid costly blunders, the attorneys often control what is said by speaking for their clients. In a system where the realization and acceptance of personal responsibility is punished or leads to losing the case, the safer strategy is to avoid, or sometimes even hide, the truth.
As it is, the evidence must be told in a way most likely to convince a judge or a jury, because they decide who wins and who loses. The punitive model of justice requires that trial attorneys be good storytellers, even when the facts make it an uphill battle. They must shape the facts to fit their winning story, and then minimize what is inconsistent.
Because it is a win/lose system and the stakes are often extremely high, telling the truth may be experienced as unsafe, too risky. In some cases, even an honest person may fear that a greater injustice will result from telling the truth than the injustice of telling “a little white lie.” In high stakes cases, like a divorce or medical malpractice, for example, when a person’s children, reputation or livelihood are at stake, a winning story is crucial, even if it is not entirely true.
Unitive Justice Inspires Honesty
“The truth will set you free” is an old adage that may not apply to punitive justice, but it does to unitive justice. For the truth to set us free, we must walk toward the truth, even when it is painful.
The success of unitive justice depends on the participants telling the truth in order for their shared humanity to be recognized, for the underlying conflict dynamic to be discovered, and for mutually beneficial action to emerge. This is more likely to occur in a safe space, which facing retribution and revenge does not provide.
We have examples of justice based on lovingkindness getting to the truth, even in the most difficult circumstances. After years of civil strife in a racially divided nation, the Truth and Reconciliation trials in South Africa under the leadership of Desmond Tutu showed how truth is more easily discovered when the heart is open and the reward is to be forgiven.
Building on the values inherent in the African system of Ubuntu, participants in these trials were held in an empathetic space where truthfulness and vulnerability were supported. Truthfulness led to mutual understanding and, sometimes, a recognition of their shared humanity. Instead of asking that their tormentors be punished, as an-eye-for-an-eye justice would have it, there were moments during some trials when victims of terrible atrocities felt a shift, connected to something greater than themselves, and spontaneously embraced the perpetrators.
Other nations torn with civil strife have instituted truth and reconciliation trials in one form or another, demonstrating another model of justice is possible, even at the national level. An essential element in the success of these healing processes is that those involved find it safe to be truthful. Applying unitive principles when these systems are being created tends to insure that truthfulness will be experienced as safe.
Creating a sense of safety around telling the truth does not depend on just one structural element. Unitive justice is a system in which the structural elements are mutually supportive, and the strength of the structure depends on this reinforcing, interlocking characteristic. Accordingly, values support equality. Values and equality support insight and mutually beneficial action. These support power, connection and trust. Trust leads to honesty.
In a circle process using unitive justice principles, as participants share honestly, they begin to offer to use their power differently. This creates a giving and receiving that flows around the circle. Instead of punishment being the price that must be paid, the reward for being honest is mutually beneficial action, an outcome in which no one has to lose.
* * *
The short clip below shows Atticus Finch cross examining Mayella in the movie, To Kill a Mockingbird. This scene reminds us of why a witness may not feel safe telling the truth in the adversarial setting of a trial. This particular case had a context that included domestic abuse and racial violence, neither of which was addressed by the criminal trial.
 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/deception, last visited Jan. 9, 2018.