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February 16, 2024 Judicial Division

JD Chair's Column

Rule 102

By Hon. Julian Mann, III, Raleigh, NC

Some who read this column may find it familiar.  In August of this year at the Judicial Division’s Council meeting in Denver, I shared some thoughts about the pursuit of truth in litigation. Some of what I said then may bear repeating. My conclusion then was that without truth there can be no justice. Why is that? 

I found this conclusion in the Federal Rules of Evidence, Rule 102:

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. (emphasis added)

So, what is the role of truth? Do not most, if not all, of the Rules of Evidence direct us to ensure that the evidence we receive at trial is reliable. Our witnesses take oaths and affirmations to tell the truth under the penalty of perjury. Isn’t the purpose of cross examination to test the truth of what a witness testifies to on direct examination? What about the reliability of documentary evidence? Are not the hearsay rules designed to prevent the introduction of out of court statements which cannot be tested by cross examination?

As the trier of fact, I was not the best one to judge credibility of a witness by observing witness’ demeanor. I often found that contemporaneous statements recorded by witnesses in written documents were often more reliable than statements made by witnesses at trial who had then had a stake in the outcome. Even the hearsay rules allowed the admission of documents described as business records.

In August I quoted from one of our pillars of justice. The quote came in an address given by Justice Oliver Wendell Holmes to the Suffolk Bar Association, Boston Mass. on March 7 1900 ... yes, that was over 123 years ago. Justice Holmes quoted French Philosopher Nicolas de Malebranche on Love of Truth. “It was this that Malebranche was thinking when he said that “if God held in one hand truth and in the other hand the pursuit of truth, and God said choose say, ‘Lord , the truth is for thee alone, give me the pursuit.’”"

Our job as jurists is to pursue the truth and not be distracted by the truth benders. We may miss the truth, but it is not because we did not honestly pursue it. We never know for sure as judges and lawyers if we really arrive at the truth, but that’s our pursuit, and when the evidence points to that truth, we apply the law to what we or the jury have found to be truth. Under Goal III of the Judicial Division’s Strategic Plan we are admonished to “Achieve a Fair and Impartial Justice System.” So let’s pursue truth to achieve justice.

Hon. Julian Mann, III (Ret.)

2023-2024 Chair, Judicial Division

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