Dealing with inconvenient truths in litigation

In the recent Christopher Nolan Oscar-winning movie blockbuster Oppenheimer, J Robert Oppenheimer’s wife, Kitty, faces the following cross-examination by Roger Robb at the Atomic Energy Commission hearing that led to the revocation of Oppenheimer’s security clearance:

Robb:    “Did you have a communist party membership card?”

Kitty:     “I’m… I’m not sure.”

Robb:    “Not sure?”

Kitty:     “Well…”

Robb:    “Well…?  I mean presumably the act of joining the part required sending some money and receiving a card, no?”

Kitty:     “Sorry.  It’s just it was all so very long ago.”

The wider movie explores the painful paradox of the invention of the atomic bomb having ended the global misery of World War 2, but also having itself been an instrument of death, killing hundreds of thousands and injuring far more.  Was its invention a good thing or bad?  Might its invention, intended to stop the killing and death, in due course, go on ironically to end all human civilisation on Earth?

Kitty goes on following the above exchanges to perform with rather more certainty and flourish than the stuttering start at the beginning of her evidence.

Kitty is worried that having been a communist party member in the past will reveal her and her husband as Soviet communist sympathisers.

The way she wrestles with the truth, not wanting to admit to the past she wishes were different, makes her look less than entirely honest.  Like someone with something to hide.

An unkind interpretation of her answers is that she remembers very well being a communist party member, is ashamed of it, and does not know how to explain it now.  Or she does not know how to explain that despite that fact of having been a member in the distant past, she has nothing in common with communist beliefs now.  We all get tongue-tied sometimes.  But the evasiveness looks like someone who won’t admit the truth.  And, as closing submissions would no doubt say after such a cross-examination, once you establish someone is a truth denier, how can a Court believe anything they say?  In such a way, even if a witness has truthful evidence to give, their own credibility might be attacked if elsewhere in their evidence they can be shown to have appeared untruthful.  Even if they tell the truth in questions that follow, we might struggle to believe it if a witness has already shown herself to be deniers of the truth.

A better prepared and more clear-sighted reply might have been along the lines of, “yes I did join the communist party twenty years ago when I was younger and naïve and before I realised what it was all about.  And when I realised what it was all really about I left emphatically and have opposed everything they stood for ever since.”  Any mature adult realises that impressionable young people sometimes in a spirit of exploration might get involved in learning more about things they ultimately reject.  And confronting the truth head-on would make Kitty appear truthful.  And self-aware.  Yes, we might think, she did something in her past she regrets, but here she is facing it head-on and being truthful: here is someone whose testimony we can probably give fair weight to.  Moreover, if she’s been on a journey of exploring ideas in the search of truth, indeed maybe she is ahead of many of other human beings in doing so and perhaps her evidence is likely therefore to be more reliable.

In this way, it can be seen that it is generally much better to admit and confront inconvenient truths head-on, than try to bury or avoid them, or to appear in denial of the truth through embarrassment or otherwise.

The Courts and justice system are not always perfect, but is certainly designed to discover the truth and probably generally successful in doing so.  A good legal team will consider the good, the bad and the ugly in any particular case, and will consider how to deal with and best present the ugly.  Perhaps counter-intuitively to those who fear admitting the ugly will do them harm, it can be better to face up to it than to bury it.  An ugly truth can often be dealt with if it is known about and explored properly.  Burying it on the other hand, if it gets unearthed half way through a trial, might bury your case.