Truth, whole truth and lies

I’m not upset that you lied to me, I’m upset that from now on I can’t believe you

I have recently watched a court room drama. Each time a new witness appeared the witnesses’ oath was repeated. I am not sure why the authors and directors of the drama felt the need to include the swearing of the oath. I would have thought it could be taken as read. It brought to mind a relatively recent experience I had giving evidence in a civil matter. I say relatively recent but it was nearly a year ago but the judgment has not yet been issued.

I gave evidence on three separate days. I affirmed rather than swore but affirmation has the same effect. When swearing a witness will either say the words themselves or they will be read by a court official who asks if the witness agrees or otherwise. In the mouth of an official the words are:

Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth and nothing but the truth, so help you God?

To which the witness is expected to say I do and I assume they invariably comply. For reasons of which I am unaware the court official required me to agree to the oath on the first day and at the beginning of each subsequent day. On the third day I began to wonder what exactly I was committing myself to. Over the extended period in which I was cross-examined I was confronted with documents I had received or written from some dozen years before or more. In most cases I could recognise that I had written the text as I have a certain hyperbolic style when my hackles are raised. Nonetheless the exact circumstances or subject matter often eluded me. Having to read pages of unfamiliar text in a hurry I would answer the questions as honestly as I could. But it began to dawn on me that honesty, whilst often truthful, sometimes falls short of the truth.

Truth is said to be the body of real things, events and facts (Merriam Webster). To my mind truth is an absolute. It is binary perhaps in this sense. About any given thing or event there is a single right or correct description or answer whereas there is an infinite of number of false versions ranging from slightly inaccurate to flagrantly untrue. It’s a bit like the word perfect. Perfect is absolute in that it encompasses the idea that a thing or event is as good as it can be such that it is a nonsense to describe something as being or becoming more perfect. It’s almost as though the court system is setting people up to fail as its oath imposes a standard that is near impossible to reach.

An example arose in representations I made to the court. Central to proceedings was a contract I signed 14 years before. I could have sworn, in the idiom, that I did not read it before signing. Well, I did testify that I had not read it. I was, at one point, charged by my tormentors at NZICA with incompetence because I said I did not read it. It mattered not as there were two entirely unrelated lawyers who crawled all over it on my behalf. At some point I was confronted with an email I had written prior to signing it where I objected to a minor detail near the end of the document. I had noticed that an arbitrator selected was a person I did not trust and I insisted on change. I must have read it, at least in part, though I had no recollection of doing so.

In short, I harboured an honest belief, a belief that was arguably untrue. It was untrue if reading the draft contract meant that I had glanced at it and found something I objected to. It was quite possible that one of the lawyers engaged had referred the matter to me and I read that clause but that clause alone. If reading, on the other hand, meant a thorough perusal of every word in the draft, then what I said had more than sufficient quotient of veracity to be considered true. Nothing came of the possibility of me being honest but untruthful other than the vindictive conduct of NZICA. But still it is moot whether or not I had told the truth, the whole truth and nothing but the truth.

There are some things that are immutably true or not. For instance, if A = B and B = C then A = C. It is true because it is a tantamount to a tautology. In matters of evidence nothing is ever quite so clear cut. Circumstances are often replete with nuance, uncertainty, or ambiguity. It is a mystery, then, why the court’s oath is so emphatic, so empty of subtlety. The court seems to require a certitude that is vanishingly elusive. Surely, the oath should be adapted to drop the reference to God’s assistance to be replaced by the phrase “such as is consistent with my honest belief”.

I also wonder about the whole truth. Presumably requiring a witness to tell the whole truth reflects the fact that a material omission is a form of dishonest representation. I have been the victim of such conduct by an accounting practitioner as he neglected to report I had tried to cooperate with him but he had failed to respond. It so happens that my expulsion from NZICA is based on this particular deceit by omission. Interestingly, NZICA’s code of ethics specifically states that a member should not “omit or obscure required information where such omission or obscurity would be misleading”. When I point it out NZICA remains uninterested. In a court I think the idea problematic as the witness is not in control of proceedings and may not be allowed to give the whole truth.

I have written about this before but the irony is that my opponent in the litigation was caught in abject perjury which resulted in him conceding to counsel that what he had testified to the day before was untrue. There has never been a circumstance where the legal dictum falsus in uno, falsus in omnibus was more applicable, equal maybe but never more.