To Tell the Truth

During the time I was a judge, I attended a number of Judicial College seminars during which an "expert" or two discussed with the attending jurists the problem of ascertaining whether or not a witness was testifying truthfully. The discussions centered on body language, word and speech patterns, eye movements, and other human quirks and tricks that were supposed to aid in the determination of truthfulness.

Still, every judge will tell you that there are situations in which it is very difficult to tell fact from fiction in testimony. I am not talking about differences in perception or in memory. The topic here is identifying the flat-out lie that a witness wishes the trier of fact to perceive as a true recounting of some past event.

Fortunately, there are not a lot of situations arising in Domestic Relations proceedings that lend themselves to prevarication. However, in certain cases, notably those involving allegations of domestic violence or conflicts involving children, the facts as related by the parties are simply too inconsistent to reconcile. Someone is not telling the truth.

Sometimes, a witness' version of an event simply is too far-fetched and inconsistent with human experience to be believable. For example, in a case in which marital infidelity was at issue, Wife testified that, although she met her alleged paramour in a local drinking establishment, had a few drinks, went with him to a nearby hotel where they spent the night, and was seen in a passionate embrace with him as the two of them were leaving the motel the next morning, the fact was that they were "just friends" who had too much to drink and decided to sleep it off together. There was, she swore under oath, no sex involved.

Sorry, I was not buying it.

The more difficult case is the "he said, she said" situation where the stories clearly conflict and only one could be true. In a dispute over custody of two very young children, the issue arose concerning Dad's allegation that Mom repeatedly denied him time with the children. He testified that, notwithstanding the court order that granted him parenting time, he would show up at Mom's residence to get the children and she would not be present. She testified, however, that he would repeatedly fail to come to her home at the appointed time to pick them up.

In the absence of any third party witnesses, it was extremely difficult to determine what really happened. I always felt it was too bad that people do not have a little red light in the middle of their foreheads that illuminated when they were lying.

My Rabbi recently asked me if I thought that the administration of an oath had any influence on a witness' truthfulness. I told him that I had often considered changing the wording of the traditional oath to: "Do you swear to tell some of the truth, part of the time, as it may serve your purposes." At least the level of perjury would be reduced.