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Winston Churchill once famously said, “Democracy is the worst form of government, except for all the others.” Perhaps the worst form of ascertaining the truth is the American civil court system, except for all the others. I guess, all in all, it is pretty darn good. It may have its faults as Churchill thought about democracy but it is a system with an approach and a purpose and a pretty good track record.
In a recent blog, I wrote about cross-examination. There is a concept, culled from centuries of jurisprudence, that questioning and eliciting answers in a vigorous format helps to establish the facts. Also, an oath is a powerful tool in eliciting truth, although certainly not something that ensures or guarantees truth. Another concept behind witness testimony is that the trier-of-fact, usually a jury, can judge the demeanor of a witness. All of these reasons explain why hearsay is disfavored and often excluded from the courtroom. Of course, there are exceptions which have carefully evolved over centuries. Hearsay exceptions need some indication of reliability if the proffered evidence is to be admitted.
What does Churchill have to do with this? No one can guarantee that the truth wins out. Nevertheless, if you talk to seasoned court observers, you will find that juries “most often get it right.”
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