- Paul Hergott
sa国际传媒淏old faced lie!sa国际传媒� exclaimed my daughter, Cassidy, during a game of One Night Ultimate Werewolf. Lying is a feature of the game, where player identities are secret and clues are gathered before an execution.
Townsfolk struggle to identify and execute at least one werewolf. If not, the werewolves win.
Cassidy and her friends are pathetic liars. Giggling is a common sa国际传媒渢ellsa国际传媒�. And itsa国际传媒檚 a struggle for them to come up with a lie that fits with known facts.
Their ability to identify a lie is also poor, even with the sa国际传媒渢ellssa国际传媒�. So when a lie directly contradicts a known fact they excitedly pounce on it.
I love that my children, and their friends, are pathetic liars. Theysa国际传媒檙e clearly not practiced. Though Isa国际传媒檇 appreciate a touch more of a skill at identifying the lies of others!
How do judges do it? How does a judge figure out who is telling the truth and who is lying? Do judges benefit from some divine insight into the hearts and minds of the witnesses appearing before them? Is there special training in identifying the sa国际传媒渢ellssa国际传媒� of those not being entirely truthful? Will a more practiced liarsa国际传媒檚 story carry the day and lead to injustice?
A decision of British Columbiasa国际传媒檚 highest court (the British Columbia Court of Appeal) from more than half a century ago sheds light on those questions. Unless you are a practiced liar, you will appreciate the comments of Mr. Justice Osa国际传媒橦alloran, in Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C.C.A.), who identifies the problem of assessing sa国际传媒渟a国际传媒he testimony of quick-witted, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth.sa国际传媒�
Mr. Justice Osa国际传媒橦alloran goes on to identify an even more difficult puzzle, i.e. identifying when a witness has the honest intention to give accurate testimony, but is mistaken. No sa国际传媒渢ellsa国际传媒� there! He put it as follows: sa国际传媒淎gain a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say sa国际传媒業 believe him because I judge him to be telling the truth,sa国际传媒� is to come to a conclusion on consideration of only half the problem.sa国际传媒�
The judge specifically noted a lack of divine insight into the hearts and minds of witnesses.
The solution, when faced with both skillful liars and those mistakenly believing they are telling the truth? Mr. Justice Osa国际传媒橦alloran said that you compare the witnesssa国际传媒檚 version of events against whatsa国际传媒檚 likely to be true in the context of other known facts. In his much more eloquent words: sa国际传媒淚n short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.sa国际传媒�
Itsa国际传媒檚 not about how good a liar you are. Itsa国际传媒檚 about how well your story fits with whatsa国际传媒檚 most likely to be true.
But if that was the only test applied by judges, all you would have to do is weave the best fitting story. A much more recent judgment offers a number of additional factors that trial judges rely on to get to the truth. I will share those factors in my next column.
Paul Hergott is a personal injury lawyer with Hergott Law.
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