I sent a National Post piece to Twitter the other day because I was struck by a letter which included the following:
“In my career as a family lawyer, I came to realize that judges are abysmal at discerning liars from truth-tellers. And when they are uncertain about the facts, judges typically search for a compromise position. It is apparent that the judge in this case had reasonable doubts about the rape allegation. Rather than acquit, his compromise was to find the man guilty and then invoke mitigating circumstances to reduce the normal sentence, bringing condemnation upon himself.”
The original story was “No Jail For Rapist Because Victim ‘Wanted To Party,’”.
The letter was striking because it touches on the issue of how-on-earth are lawyers supposed to suddenly be gifted at divining truth-tellers from liars just because they have been appointed to the bench? There’s no training for that (divining). Moreover, the way this writer puts it (“judges are abysmal at discerning liars from truth-tellers…”) is a pretty heavy indictment of the judging in question. I wonder if the writer is no longer practicing law because I wouldn’t be surprised to see a complaint to the Law Society about public statements like that. For the same reason, I would be reluctant here to say “ain’t it the truth” even if I had encountered some similarly abysmal judging myself (which I am not saying I have).
What I can say is this: if you have something on a witness that can impeach them or draw their credibility into question, do not hold back. Use it all, and then some. Throw whatever book you may have at them, figuratively speaking. Even experienced judges, it seems, can end up believing a witness when nobody else in the room did. There are so many examples in the appellate case law that one is reluctant to single out any case or judge in particular as an example, but here is a recent one worth reading.