7.5_KLEIN_DOCUMENT1 (1-79).DOCX (DO NOT DELETE) 1/16/17 12:01 PM Truth and Legitimacy (In Courts) Kenneth S. Klein* This Article seeks to comprehensively articulate the meaning, role, and importance of truth in courts by drawing upon empirical and theoretical scholarship from philosophy, economics, social science, psychology, political science, ethics, and jurisprudence, in addition to more traditional legal sources such as United States Supreme Court decisions. It is frequently said that trials are a search for truth. But as insiders to the judicial system know, if this is so, then it is a meaning of truth that differs from what truth means in any other context. And exposing this definitional dissonance, in turn exposes that the legitimacy of the courts rests on an eroding foundation, as courts increasingly are not doing what the community believes courts are doing. This Article argues that when * Professor of Law, California Western School of Law. Because this work draws from so many fields of study, the Author could not have written it without knowledgeable “fact checkers”—in reality “thought checkers”—from many disciplines; in this regard the Author thanks Professor Scott Soames, Distinguished Professor and Director of the School of Philosophy at the University of Southern California; Professor Theodore Klastorin, Professor of Operations Management, Burlington Northern/Burlington Resources Professor in Manufacturing Management, Foster School of Business, University of Washington; Professor Jeffrey L. Yates, Professor of Political Science, Binghamton University, State University of New York; Professor Luke Meier, Baylor Law School; my colleagues, Professor Don Smythe, Professor Mario Conte, Professor Daniel Yeager, and Professor Tim Casey. The Author thanks Professor Lisa Black and Professor Greg Reilly for patiently being sounding boards and editors. The Author is grateful for the research support and assistance of Research Assistant, Shauna Guner, the Library staff of California Western School of Law, and Peter Roudik—Director of the Global Research Center of the Law Library of Congress. This Article was written as the Author’s sabbatical project—the Author thanks the Board of Trustees of California Western School of Law for approving this Article as the Author’s Sabbatical Project. The Author acknowledges the unintended but undeniable inspiration of this Article from then- University of Texas School of Law student Lisa Black, who as a 1L in 1982 wrote the limerick: There once was a fine Texas youth, Who sought the world over for truth. But that’s not what he saw, So he turned to the law, Where truth’s just a matter of proof. The Author met Lisa Black two years later, has been her spouse since 1985, and has heard this limerick countless times over the past 30+ years. Finally, the Author thanks the student-editors of the Loyola University Chicago Law Journal who did their damndest to make this Article better. All errors in this Article are entirely the Author’s. 1 7.5_KLEIN_DOCUMENT1 (1-79).DOCX (DO NOT DELETE) 1/16/17 12:01 PM 2 Loyola University Chicago Law Journal [Vol. 48 courts do not account for lay perceptions of courts as institutions that primarily value accuracy in decision making, courts jeopardize the legitimacy of courts as public institutions. INTRODUCTION .................................................................................. 3 I. TRUTH IN COURTS ......................................................................... 5 A. Truth in Philosophy as a Template to Understanding Truth in Courts ............................................................... 6 B. Understanding Justification in Courts ........................... 12 1. The Rules of Evidence Define What Counts as a Fact in Courts .................................................................. 13 2. Procedural and Administrative Rules of Evidence .. 14 3. Evidence Rules Protecting the Jury ......................... 16 4. Evidence Rules Intentionally Compromising the Likelihood of Accurate Results .............................. 22 5. Conclusions About What Courts Count as Facts .... 26 C. Understanding Knowledge in Courts ............................ 27 1. Knowledge as Accuracy .......................................... 28 2. Accuracy as Burdens of Proof ................................. 30 3. Conclusions About Knowledge in Courts ............... 37 D. Understanding Belief in Courts ..................................... 37 1. Substantive Fairness and Procedural Sufficiency .... 37 2. Individual Fairness and Collective Fairness ............ 42 3. Perceptions of Justice and Actual Justice ................ 43 4. Conclusions About Belief in Courts ........................ 47 E. Understanding Truth in Courts ...................................... 47 II. “LEGITIMACY,” OR WHY THE MEANING OF TRUTH IN COURTS MIGHT MATTER ...................................................................... 51 A. Legitimacy of the Justice System .................................... 52 1. Legitimacy of the United States Supreme Court ..... 52 2. Legitimacy of the Trial Courts ................................ 53 a. Judges and Legitimacy ....................................... 54 b. Lawyers and Legitimacy .................................... 54 c. Juries and Legitimacy ........................................ 62 d. Conclusions About Fragility of Trial Court Legitimacy ........................................................ 65 B. Truth in Courts and Legitimacy Fragility ...................... 65 CONCLUSION ................................................................................... 74 APPENDIX A .................................................................................... 75 7.5_KLEIN_DOCUMENT1 (1-79).DOCX (DO NOT DELETE) 1/16/17 12:01 PM 2016] Truth and Legitimacy 3 INTRODUCTION This Article seeks to answer what the meaning of truth is in American trial courts,1 and why one should care. As big as this inquiry sounds, it is tied up in equally large subsidiary questions—the meaning in courts of justification, of knowledge, and of belief, which in turn implicate the meaning in courts of fairness, due process, justice, accuracy, and fact. Only upon answering these questions can one explore the foundation of the courts’ legitimacy, and how both the meaning of truth in courts—and the public perception of the role of truth in courts—relate to the actual legitimacy of the courts. This is no small task. There is scant academic literature studying the meaning of truth in courts. What has been written about the role of truth in legal systems largely exists in the ephemeral context of jurisprudence, rather than the concrete world of the truth-finding function of trials. Part I of this Article adopts the multi-millennia work of philosophy in defining truth as a roadmap to isolating the nature of truth in courts. Part I.A of this Article attempts to very, very briefly summarize the philosophical literature on truth to isolate a construction of truth that can advance an understanding of truth in courts. Within epistemology, a court-like pragmatic construction of truth is the weak deflationism definition of truth within realism, which sees truth as a binomial property that a proposition has (or not). It is either true, or it is not. Court decisions about facts are similarly binomial: guilty/not guilty or liable/not liable. Weak deflationism sees truth as residing in a constellation of truth-related concepts—knowledge, certainty, and belief—each of which leans on the other to derive its meaning and role. Simply put, knowledge requires truth, justification, and belief. This formulation of the role of truth facilitates isolating the meaning of truth in courts. Part I.B of this Article explores justification in trial courts. In trial courts, justification is defined by the Federal Rules of Evidence (“Rules”), which directly delineate what counts as a “fact” in front of a jury. Perhaps surprisingly, the Rules do not consider all pertinent information as facts in determining trials, but rather routinely discard facts for one of two reasons: (1) the facts presumptively are considered beyond the evaluative skillset of the decision maker; or (2) consideration of the facts, while advancing a trial decision, undermine a policy goal—external to the merits of the case—considered more 1. The United States federal district courts created pursuant to Article III of the United States Constitution, and the trial courts of general civil and criminal jurisdiction of the various States of the United States. This Article sometimes collectively refers to these courts as the “American courts.” 7.5_KLEIN_DOCUMENT1 (1-79).DOCX (DO NOT DELETE) 1/16/17 12:01 PM 4 Loyola University Chicago Law Journal [Vol. 48 important than the accuracy of trial outcomes. Part I.B concludes that, in justifying a trial judgment, not all facts matter. Part I.C of this Article explores knowledge in courts. Knowledge is the degree of certainty that must be reached, in light of the goals of the process, to stop gathering information and move to taking action. Knowledge is a compromise or balance between certainty and finality, between perfection and adequacy. It is what one might call the necessary and sufficient degree of accuracy. This is a common balancing determination that exits in any information-gathering, decision-making endeavor: How much confidence does one need in gathered information to act? Justice systems articulate their balance of accuracy and finality through burdens of proof. The burdens of