Yehuda Lave
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Can criminal trials be expected to establish the truth about historical events?

The question is a serious one, but it has been confounded by a discrepancy that exists between the legal and the popular conception of what a trial does.

In law, the purpose of a criminal trial is to decide, according to predetermined norms, whether a defendant is guilty or not guilty of a particular charge.

Adversary proceedings are designed to render a simple yes-or-no answer to some precise question, a question that has been drawn in as specific a manner as possible.

In the popular imagination, however, a trial performs a somewhat grander service. It is looked upon as a fact-finding operation, an occasion for the public exposure of all known information regarding a given crime. The general assumption is that, if fairly conducted, a trial will yield the whole truth; aside from meting out justice to the accused, it will provide complete information and resolve the doubts of a concerned public.

The assumption that the “truth” ineluctably emerges in a fair trial is the premise of countless mystery novels and courtroom television dramas of the Perry Mason variety.

It is a presupposition which is reinforced by the news media, a convenient tack for journalists to take since it reduces the burden of reporting the facts about a crime to the business of covering court proceedings. “Objective journalism” requires only that both sides of a story be printed—a requirement that it is fulfilled by the contrapuntal presentation of evidence by prosecution and defense; in addition, cross-examination provides an element of dramatic conflict, neatly resolved by the jury’s verdict.

The rights of a defendant notwithstanding, the news media insist that a major trial be turned into a public forum. To accomplish that end, the accused must appear in open court, the prosecution must present all the evidence, cross-examination must take place, and “by no means, legal or pragmatic,” should the courtroom doors be slammed shut on the facts.

Naturally, a plea of guilty on the part of a defendant is therefore precluded, for it cuts short the issuance of facts and information. What the media do not appear to understand, however, is that a guilty plea is a defendant’s legal prerogative. Nor do the media fully recognize the right of the accused not to take the stand but simply to remain mute, or the right of the defense to attack or attempt to controvert the prosecution’s case without presenting its own side of the story, or the procedural rules which impose restrictions upon the sorts of evidence that may be introduced and which require that the prosecution present only such evidence as is relevant to the specific charges at hand.

There can be no provision in the law, furthermore, for differentiating between “routine” murder trials and extraordinary ones, such as “quasi-political assassination”; all must be governed by the same fixed rules, some of which necessarily impede the disclosure of information. Often the right of a defendant is precisely his right to withhold or prevent the prosecution from introducing, certain information which the public might like to know but which might prove to be prejudicial to his case.

In the United States, perhaps the trial most thoroughly scrutinized for its “fairness” has been that of Sacco and Vanzetti; for many people, this trial has become a kind of American version of the Dreyfus case. The common argument runs as follows: two Italian anarchists were arrested and convicted of murder, not because there was any substantial evidence against them, but because of a prevailing hysteria about, and prejudice against, anarchists, a prejudice shared by the court that tried them. Even though the trial was manifestly unfair, and the evidence transparently flimsy, the argument continues, the Establishment rallied to the defense of the verdict in an effort to protect the political system.

But in any event, the fact that data which may be vital to the determination of historical truth can be excluded from a trial does not necessarily mean that the trial is “unfair”—at least, not in the sense that the rules and procedures of law have been unfairly or improperly applied.

Quite the opposite may be the case: rules and procedures designed to protect the rights of the accused and facilitate the adversary process can, and often do, work to restrict the evidence that can be introduced.

Nor can a trial, no matter how “fair,” evaluate evidence that has been missed by the police investigations, which themselves may have been faulty or tendentious. Remember one of the most famous cases, OJ Simpson and the problem with the evidence.

The ability of the defense to conduct its own private investigation is limited by the resources available to it, both financial and legal, and by its purpose—to find data that support its client’s side of the case.

A trial, then, can produce a decision of guilty or not guilty, and if the trial is assumed to have been fairly conducted, the decision will be generally accepted, but a trial cannot be counted on to yield large historic truths. But the nature of our judicial system is such that, when the investigative wherewithal of public agencies has been exhausted, the responsibility for providing the public with a full rendering of the event ultimately rests not with the courts, but with concerned historians.

Now for a little humor treat:

A Burial Plot

An old Jewish woman, on her 80th birthday, decides to prepare her last will and testament. She goes to the rabbi to show it to him and to ask him for advice on a few points, chief among them is her request that she not be buried in a Jewish cemetery.

“But why Mrs. Epstein?” the rabbi asks. “You don’t want to be buried with the rest of our people?”

“No,” Mrs. Epstein said resolutely. “I want to be buried at Bloomingdales.”

“Bloomingdales?!” the rabbi said in disbelief.

“Yes. Then I’ll be sure that my daughters will visit me at least twice a week!”

About the Author
Yehuda Lave writes a daily (except on Shabbat and Hags) motivational Torah blog at Loving-kindness my specialty. Internationally Known Speaker and Lecturer and Author. Self Help through Bible and Psychology. Classes in controlling anger and finding Joy. Now living and working in Israel. Remember, it only takes a moment to change your life. Learn to have all the joy in your life that you deserve!!! There are great masters here to interpret Spirituality. Studied Kabbalah and being a good human being with Rabbi Plizken and Rabbi Ephraim Sprecher, my Rabbi. Torah is the name of the game in Israel, with 3,500 years of mystics and scholars interpreting G-D's word. Yehuda Lave is an author, journalist, psychologist, rabbi, spiritual teacher and coach, with degrees in business, psychology and Jewish Law. He works with people from all walks of life and helps them in their search for greater happiness, meaning, business advice on saving money, and spiritual engagement
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