Do We Speak ‘truth’ Or ‘law’ In Court?

Prologue: The case of the missing hunters

Once upon a time in a village called Ampenkro, there was a law that made it a criminal offence punishable by death for any person to kill or eat the flesh of another person. This law was made because there was a great famine in the land, and people had to eat human flesh to survive. The land was full of wild and dangerous beasts which attacked and killed many people. Farmers could not go to their farms to fetch food stuffs as they feared to be killed by the wild beasts. Many people died of hunger. By a decree of the chief, six skilled hunters were selected to enter the forest to fetch food and meat for the town folks. The hunters travelled too far into the forest that they missed their way back home. Meanwhile, they had neither game nor food. When the hunters realized that they could possibly die of hunger, there was a proposal to kill and eat one of them to survive. Five of them voted in favour of the proposal while one voted against it. By majority decision, they killed and ate one of them. The human flesh sustained them till they eventually found their way home many days thereafter. When they got home, four of them quickly reported to the chief that a wild beast had killed one of them but they managed to escape. The other one told the chief the ‘truth’ that no wild animal killed one of them; they in fact killed and ate him to survive. As the law of the land protected whistle blowers from prosecution, the four hunters were arraigned before the court on two counts of (a) murder and (b) cannibalism, but the one was not charged. At the trial, the testimonies of all four accused persons concurred that the deceased was killed and eaten by a wild beast. The prosecution had only one witness to call in support of their case.

Now, the trial has ended, and you are the judge. You did not take part in the hunting expedition. Would you convict or acquit the four hunters? Can the testimony of one witness override concurring testimonies of four witnesses? Your judgment would be as good as mine!

Introduction
One of the greatest fallacies entertained by people about law is that the business of the court is to discover truth. Truth is a fundamental value deeply ingrained in our culture, morality and religion, which is a necessary component of social cohesion and progress. All the main religions in Ghana emphasize truth as a fundamental value. It is generally expected that the law would reflect that fundamental value and do so at the core of its processes. The public never accept that justice can be attained without emphasizing truth. To the public, law should be a system of rules dedicated to the search of truth. But do courts really concern themselves with and commit to the search of truth? What at all is truth?

It must be pointed out that a court of law is never engaged in ascertaining ultimate verities. The business of the court is to determine what is the proper result to be arrived at, having regard to the evidence before the court. Like all common law countries, Ghana operates an adversarial system of legal procedure. The adversarial trial is not committed to the finding of truth as we know it in morality, religion and culture. The core business of the court is to find fact that is supported by evidence. This is why our judges are called ‘fact-finders’. The court is concerned with procedural truth or legal truth. The court does not concern itself with any truth that is not supported by evidence. The legal system has established fact-finding criteria and the norms to ascertain the truth in the established facts.

What is the purpose of swearing an oath?

Before a person testifies in court, he is made to swear an oath to speak the truth. A person may swear with the Bible, Quran, Cross, Traditional belief or Affirmation, according to his belief. Before giving his evidence, a witness swears the oath to speak the truth, the whole truth and nothing but the truth. The oath is a formal promise by which the person swearing invokes God or some deity or pronounces some words which he considers sacred. The purpose of the oath is to encourage truth. What kind of truth do parties and their witnesses swear to speak?

What is truth according to the Bible?
It was a cardinal maxim of the Mosaic Law that the testimonies of at least two witnesses were capable of establishing every matter as true. Thus, no one could be condemned or punished where there were not at least two or three witnesses to prove the offence against him. This maxim is also found in the New Testament of the Bible. References may be made to the following Bible verses:

Deuteronomy 17:6:
“At the mouth of two witnesses or three witnesses shall he that is worthy of death be put to death. At the mouth of one witness he shall not be put to death.” (MKJV)

Deuteronomy 35:30:
“Whoever kills any person, the murderer shall be put to death by the mouth of witnesses. But one witness shall not testify against any person to cause him to die.” (MKJV)

Matthew 18:16:
“But if he will not hear you, take one or two more with you, so that in the mouth of two or three witnesses every word may be established.” (MKJV)

John 8:17
“It is also written in your law that the testimony of two men is true.” (MKJV)

2 Corinthians 13: 1b
“In the mouth of two or three witnesses every word shall be established.” (MKJV)

Hebrews 10:28:
“He who despised Moses' law died without mercy on the word of two or three witnesses.” (MKJV)

The clear import of these scriptures is that whenever the testimonies or evidence of two or more witnesses concur in proof of any issue, that issue is said to have been established and settled. The Mosaic law did not trust the evidence of only one witness, hence Deuteronomy 19:15 cautions thus “One witness shall not rise up against a man for any iniquity.” It was a belief amongst the Jews that a judgment based on the evidence of at least two witnesses accorded with natural justice.

What is truth according to law?
It is a public view that in court, lawyers speak law, not truth. The purpose of the judicial process is to ascertain the factual circumstances of any matter in dispute, and not to express personal convictions. The legal process does not aim at persuading anyone, or achieving logical conclusions, but arriving at decisions that are justifiable on the basis of the evidence and applicable rules of law. When we say ‘truth’ in law, we mean a fact that has been established by producing credible evidence so as to make that fact reasonably believable and comformable to legal principles. Truth in law is not a predetermined virtue or a transcendental ideal. Truth is not what someone knows to be the true state of affairs. In law, truth is not self-evident; it must be proved by producing credible evidence. When you fail to adduce convincing evidence to support your case, the judge would reject your case as been false, even though you may be speaking the truth. No assertion is true in law unless it is backed by evidence and supported by some legal principle. Judges deal with reasonable probabilities, not fanciful a priory verities. When you make an averment or allegation in court, you must produce evidence in support to make that averment or allegation reasonably believable so that a reasonable person can accept that averment or allegation to be true. This is what we call “procedural truth”, or “legal truth” or “judicial truth”.

Even when a person kills another person at the market square in the full glare of people, he cannot be said to have committed murder merely because he killed the victim in fact. The killer is presumed innocent until credible evidence is led to establish his guilt. Truth in law is a function of credible evidence. Any truth not supported by evidence and legal principle is an illegal truth.

A person who makes an assertion which is denied by his opponent has the burden to establish that his assertion is true. This burden is not discharged unless he leads admissible and credible evidence from which the truth of the facts he asserts can be properly inferred. When you fail to do this, anything you say is not true. Truth in law is intrinsic in the judicial decision itself which cannot be externally verified. Truth within a judicial decision is different from truth of the judicial decision. When the decision of a court is justifiable on the basis of the available evidence and the applicable legal principles, every proposition in that decision is true. To be true in law, a proposition must be supported by values in the legal system, which are facts, evidence and legal principle.

What does it mean to do justice according to law?

The ultimate duty of the court is to do justice according to law. This means in every litigation, the task of the court is to do justice between the parties, and this duty is discharged when the decision of the court is grounded in law or supported by some legal principle. The courts work with rules and their decisions must be supported by law. A judgment of a court is fair or just when the procedure adopted by the court and the decision itself are supported by the law. A judgment must be supported by either the provisions of the Constitution, statute, case law (principles in already decided cases), or it must conform to the opinion of writers of legal texts. Where a judicial decision is supported by law, we say there is justice according to law.

Conclusion
I am sure you are now certain on your decision in the case of the missing hunters. Would it be reasonable to convict the four hunters on the testimony of only one witness against the concurring testimonies of four witnesses? In case you deicide to acquit and discharge the four hunters for want of sufficient evidence, would you say you have done justice? Have you upheld the law or truth? It would not make sense for any judge to convict the four hunters in the face of their overwhelming concurring testimonies. In fact, a conviction would not accord with justice according to law or the Bible. Remember, the Bible favours multiple testimonies provided they do not contradict. What is now clear is that nothing can be said to true when there is overwhelming evidence against it. So when a person commits a crime in fact, but his accusers are unable to produce sufficient evidence, the alleged criminal cannot be convicted and punished. The lesson to learn here is that, there is no truth except that which is supported by credible evidence. This is what lawyers and judges are trained to do.

Daniel Korang Esquire
Adom Legal Consult
4^th Floor, Cocoa House
Sunyani
Email: [email protected]
Mob: 0248278729